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ELRCPartially AllowedPetition No 1 of 2024· [2024] KEELRC 2416 (KLR)

Khamis v County Assembly of Kisumu & another (Petition 1 of 2024) [2024] KEELRC 2416 (KLR)

Employment and Labour Relations Court of Kenya
30 September 2024
4,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, a civic-minded citizen, challenged section 10 of the Kisumu County Administration (Village Units) Act, 2024 as enacted by the 1st Respondent, contending it was passed without meaningful public participation and introduced an unconstitutional county assembly approval procedure for Village Administrators contrary to section 52 of the County Governments Act, 2012. She sought declarations of unconstitutionality, an order that the County Governments Act prevail, certiorari to quash the recruitment advertisement for 70 Village Administrator positions, mandamus to compel fresh advertisement, and costs. The Respondents maintained the Act was lawfully enacted with adequate participation evidenced by attendance registers, memoranda and a newspaper notice, and that the Assembly's approval role was consistent with Article 185 and section 8 of the County Governments Act. The court, whose determination would also dispose of a consolidated notice of motion, framed three issues and found the Amendment Bill taken for public participation bore no resemblance to the enacted law, as floor amendments fundamentally altered its character, depriving the public of participation and infringing Articles 10, 174(c) and 118(1)(b) and section 87 of the County Governments Act. It further held the Assembly's approval role usurped the County Public Service Board's exclusive appointment function, and noted procedural irregularities in the Assembly's handling of amendments. The court declared section 10 unconstitutional, null and void; the certiorari and mandamus reliefs as framed were not granted, and as public interest litigation each party was ordered to bear its own costs. Delivered at Nairobi on 30th September 2024 by Nzioki wa Makau J.

Key legal issues

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01

Whether public participation was adequate

Holding

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

Reasoning

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.

p. 7
02

Whether section 10 contradicts the County Governments Act and usurps the Board's functions

Holding

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

Reasoning

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.

p. 8
03

Whether the Assembly's procedure in passing amendments was proper

Holding

The procedure was improper; amendments were put to question without being moved and seconded, and the lack of objection did not sanitise the irregularity

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 7, 10(2), 27, 118(1)(b), 174, 174(c), 185, 196(2), Fourth Schedule Part 2
  • Kisumu County Administration (Village Units) Act, 2024section 10
  • Kisumu County Administration (Village Units) Act, 2019section 10 (as amended)
  • County Governments Act, 2012sections 8, 8(1), 8(A), 8(2), 52, 55, 59A, 65, 87
  • County Assembly Actsection 8(1)

Cases cited (5)

  • Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others
    [2015] eKLR
  • Kaps Parking Limited & another v County Government of Nairobi & another
    [2021] eKLR
  • Legal Advice Centre & 2 others v County Government of Mombasa & 4 others
    [2018] eKLR
  • FIDA Kenya v Attorney General & another
    [2011] eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.