Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition filed with Notice of Motion dated 10th July, 2024 (number not stated in judgment)· [2025] KEELRC 1741 (KLR)

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)

Employment and Labour Relations Court
16 June 2025
5,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

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

#
The Petitioner, Clerk of the County Assembly of Homa Bay, moved the ELRC at Kisumu by Notice of Motion dated 10th July 2024 seeking conservatory orders to stay her suspension from office by the Speaker on 9th July 2024, restraining any process towards her removal, barring recruitment of a replacement, and protecting public funds pending determination of her Petition alleging suspension without due process contrary to Articles 47 and 236 of the Constitution. The respondents opposed, arguing the Board acted under its statutory mandate, the suspension paved way for investigations into financial discrepancies, the Petition was defective, an abuse of process, and that the court lacked jurisdiction. At the hearing, the respondents raised the nullus principle regarding two appointment letters, lack of jurisdiction relying on the Court of Appeal decision in Governor, County Government of Kakamega v Omweno, and exhaustion of internal mechanisms; the applicant countered with authorities on conservatory orders and the court's jurisdiction over employment disputes. The court declined to engage the nullus argument and found the jurisdictional objections raised disingenuously late in submissions rather than by Notice of Preliminary Objection, particularly given that a status quo order had stood unchallenged since 23rd July 2024. On the single issue, the court, applying Shedd Dennies Simotwo and Dennis Musyoka Mutui, held that the suspension under Section 22 of the County Assembly Services Act was purely administrative, requiring neither hearing nor detailed reasons, the removal process under Section 23 guaranteeing due process. The applicant failed the Wilson Kaberia Nkunja conservatory orders test, and the Motion was dismissed with no orders as to costs on 16th June 2025.

Key legal issues

#
01

Whether the respondents' jurisdictional and exhaustion objections raised only in submissions warranted striking out the Petition

Holding

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

Reasoning

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.

p. 9
02

Whether the nullus principle argument based on two letters of appointment disqualified the Petitioner

Holding

The court was unable to contextualize the nullus principle in the application and proceeded no further

Reasoning

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.

p. 8
03

Whether the applicant's suspension without a prior hearing offended due process and Article 47 fair administrative action

Holding

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

Reasoning

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.

p. 11
04

Whether the threshold for conservatory orders was met

Holding

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

Reasoning

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.

p. 11

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. 1.The Notice of Motion dated 10th July, 2024 is disallowed
  2. 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.