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ELRCDismissedPetition (Nyamira County Assembly Service Board members' removal) — number not stated in judgment· [2025] KEELRC 995 (KLR)

Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) (Petition E002 of 2024) [2025] KEELRC 995 (KLR)

Employment and Labour Relations Court
25 March 2025
NMNzioki Wa Makau
3,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it cannot hear disputes over removing County Assembly Service Board members — only the High Court can.

What this practically means

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Executive summary

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The Petitioners, appointed as external members of the Nyamira County Assembly Service Board by Gazette Notice No. 14017 of 1st November 2022, challenged their removal on 28th November 2024 following a motion moved by Hon. Doris Nyamanga and a plenary hearing conducted by the 2nd and 3rd Respondents. They sought declarations that the summons of 26th November 2024 and the removal resolution were unconstitutional, null and void, and a permanent injunction, alleging breaches of Articles 41, 47, 50 and 258, the Fair Administrative Action Act, the County Governments Act and natural justice. Their core contentions were that the 3rd Respondent was under suspension when he issued the summons, that removal had to be initiated by a public petition rather than an MCA's motion, and that the Assembly had adjourned sine die and lacked a Speaker. The 2nd and 3rd Respondents maintained the removal was lawful, that the 3rd Respondent was the duly confirmed Acting Clerk, and that notices published by the impeached Speaker were stayed. The court framed twin issues of jurisdiction and validity of removal, and, applying the Court of Appeal's decision in Governor, County Government of Kakamega v Omweno [2025] KECA 190, held that disputes over removal of County Assembly Service Board members are constitutional questions reserved for the High Court, not employment disputes for the ELRC. Lacking jurisdiction, the court declined to consider the merits or the effect of prior High Court orders, dismissed the petition, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the ELRC has jurisdiction over removal of County Assembly Service Board members

Holding

It does not; removal of such members is a constitutional process under Article 252/251 for the High Court.

Reasoning

Relying on the Court of Appeal's decision in Governor, County Government of Kakamega & 4 others v Omweno [2025] KECA 190 (KLR), the court held that removal of County Service Board members is governed by constitutional processes, not employment law or disciplinary procedures. Since the subject matter was a constitutional question, the ELRC was divested of jurisdiction notwithstanding that a sister judge (Keli J) had initially assumed jurisdiction in the same matter.

p. 6
02

Validity of the Petitioners' removal process

Holding

Not determined, for want of jurisdiction.

Reasoning

The court expressly declined to examine the merits — including the alleged procedural irregularities, the status of the 3rd Respondent, the adjournment of the Assembly sine die, and the effect of the Nyamira High Court orders — because jurisdiction is a threshold issue: without it, the court cannot take any further step.

p. 5

Legal principles established

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  • The ELRC lacks jurisdiction over disputes concerning the removal of County Assembly Service Board members; such matters are constitutional questions for the High Court.
  • Jurisdiction is foundational and may be raised by the court suo motu at any stage.

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party bears their own costs
Jurisdiction invoked
Articles 252 of the Constitution and the ELRC Act (jurisdiction challenged on the basis the dispute is constitutional, not employment); ELRC original jurisdiction

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, "Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) (Petition E002 of 2024) [2025] KEELRC 995 (KLR)", Case Analysis (2025). Petition (Nyamira County Assembly Service Board members' removal) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/995/eng@2025-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.