Apuko, The Clerk, County Assembly of HomaBay v Gaya, The Speaker, County Assembly of HomaBay & 2 others (Petition E022 of 2024) [2025] KEELRC 1741 (KLR)
The bottom line
#A Kenyan court confirmed that a county assembly clerk can be suspended without a hearing, because suspension is only an administrative step, not removal from office.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' jurisdictional and exhaustion objections raised only in submissions warranted striking out the Petition
The court declined to entertain the jurisdiction and exhaustion arguments because they were raised late, in submissions rather than by a Notice of Preliminary Objection, and after the respondents had not challenged the status quo order in place for over eight months
The court found it disingenuous for respondents to raise jurisdiction in submissions when a status quo order had been maintained since 23rd July 2024 without challenge. Jurisdiction being critical and basic, it ought to be raised at the earliest opportunity by Notice of Preliminary Objection. The Court of Appeal decision relied on had been delivered on 7th February 2025, giving respondents ample time to file such a notice.
Whether the nullus principle argument based on two letters of appointment disqualified the Petitioner
The court was unable to contextualize the nullus principle in the application and proceeded no further
The respondents had argued, based on the two letters of appointment of the Petitioner, that the Petitioner ought not to be heard as an author or protagonist of a criminal enterprise. The court declined to engage with this argument at the interlocutory stage, finding it could not be contextualized within the application before it.
Whether the applicant's suspension without a prior hearing offended due process and Article 47 fair administrative action
No. The suspension was purely administrative under Section 22 of the County Assembly Services Act; a hearing is only required under Section 23 once removal is commenced; detailed reasons are not a legal requirement at the suspension stage unless the statute so provides
Relying on Section 22 of the County Assembly Services Act and Rika J's decision in Dennis Musyoka Mutui, the court held that administrative suspension requires neither hearing nor detailed charges. Although the suspension letter stated the applicant 'had been found culpable', no adjudicatory process had been conducted; the minutes showed suspension was intended to pave way for investigation. Section 23 sets out an elaborate removal process guaranteeing due process, and only the County Assembly can remove the Clerk.
Whether the threshold for conservatory orders was met
The applicant failed to establish a prima facie case with likelihood of success, that the Petition would be rendered nugatory, or public interest considerations under the Wilson Kaberia Nkunja test
Having found the suspension lawful and administrative, the court concluded the applicant could not demonstrate a prima facie case with likelihood of success. Neither would the Petition be rendered nugatory without the orders, nor would public interest be prejudiced. The Notice of Motion was therefore unmerited and disallowed with no orders as to costs.
Legal principles established
#- For a suspension of an employee to be lawful, it must have either a contractual authority or statutory underpinning
- A Clerk of a County Assembly suspended under Section 22 of the County Assembly Services Act is not entitled to a hearing before suspension; hearing is only required under Section 23 once removal is commenced
- The question of jurisdiction should be raised at the earliest possible instance, by way of Notice of Preliminary Objection rather than submissions
Court orders
#- 1.The Notice of Motion dated 10th July, 2024 is disallowed
- 2.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Section 12(1)(a) and (3)(i) and (iii) of the Employment and Labour Relations Court Act, invoking Articles 22(1), 258(1), 47 and 236 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Apuko, The Clerk, County Assembly of HomaBay v Gaya, The Speaker, County Assembly of HomaBay & 2 others (Petition E022 of 2024) [2025] KEELRC 1741 (KLR)", Case Analysis (2025). Petition filed with Notice of Motion dated 10th July, 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1741/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.