Khamis v County Assembly of Kisumu & another (Petition 1 of 2024) [2024] KEELRC 2416 (KLR)
The bottom line
#A Kenyan court struck down a Kisumu law requiring county assembly approval for Village Administrators because the public was never consulted on those changes.
What this practically means
#Executive summary
#Key legal issues
#Whether public participation was adequate
There was no public participation as contemplated in law; the bill subjected to participation bore no resemblance to the enacted section 10, and the public was never invited to comment on subjecting Village Administrators to county assembly approval
The Amendment Bill taken for public participation contained only one clause with two subclauses, but the Act as enacted was fundamentally different following Committee of the Whole House amendments. The court held these amendments deprived the public of participation, infringing Articles 10, 174(c) and 118(1)(b) and section 87 of the County Governments Act. The court also noted procedural missteps in the Assembly where amendments were put without being moved and seconded.
Whether section 10 contradicts the County Governments Act and usurps the Board's functions
Section 10 unconstitutionally subjects Village Administrator appointees to county assembly approval contrary to section 52 of the County Governments Act, placing the 1st Respondent in a human resource function that is the remit of the 2nd Respondent
The court found no place in the County Governments Act for an approval procedure for Village Administrators. The function of appointing them lies solely with the County Public Service Board. Embedding an approval role for the Assembly rendered the Board subservient to the Assembly and eroded its independence, contrary to the statutory scheme under sections 52, 55, 59A and 65.
Whether the Assembly's procedure in passing amendments was proper
The procedure was improper; amendments were put to question without being moved and seconded, and the lack of objection did not sanitise the irregularity
The Hansard of 9th November 2023 recorded the Chief Whip correctly pointing out that an amendment must be proposed and seconded before debate. The Chair agreed yet proceeded improperly. The court held that absence of objection could not cure the procedural defect, particularly for a Bill with major financial implications.
Legal principles established
#- Public participation must relate to the bill actually debated; fundamental alteration of a bill on the floor of the house deprives the public of their right to participate in the amendments
- Appointment of Village Administrators is solely the function of the County Public Service Board and a county assembly has no role in such appointments
- A legislative outcome produced by a procedurally flawed bill is unconstitutional to that extent
Court orders
#- 1.A declaration that section 10 of the Kisumu County Administration (Village Units) Act, 2024 is unconstitutional for violating the Constitution of Kenya and is therefore null, void and of no effect
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction under the Constitution (Articles 10, 27, 174, 196, 118(1)(b) invoked); court also references the County Governments Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamis v County Assembly of Kisumu & another (Petition 1 of 2024) [2024] KEELRC 2416 (KLR)", Case Analysis (2024). Petition No 1 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2416/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.