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Court of AppealDismissedCivil Appeal No. 51 of 2014

Speaker of the County Assembly - Kisii County & 2 others v James Omariba Nyaoga [2015] KECA 52 (KLR)

Court of Appeal
21 May 2015
5,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a county assembly clerk's appointment was valid because his written appointment letters could not be contradicted by later affidavit claims.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Kisumu (Maraga, Azangalala and Kantai, JJ.A) dismissing both the appeal and the cross-appeal in a dispute over the appointment of the Clerk of Kisii County Assembly. The respondent, initially seconded by the Transition Authority as interim Clerk, received two letters of appointment signed by the Speaker on 30 April 2013 and 10 July 2013 appointing him substantive Clerk. He was later recalled and replaced following a dispute arising, the court found, from his refusal to authorise illegitimate payment of the Speaker's private professional expenses. The trial judge, Ongaya J of the Industrial Court, had allowed the respondent's constitutional petition in full. The appellants argued that Sections 8, 12, 13, 14 and 77 of the County Government Act and various constitutional articles had not been complied with, that no proper vetting, gazettment or oath occurred, and that the letters were limited in time and purpose. The Court of Appeal affirmed the judgment below, holding that the letters of appointment demonstrated appointment by the County Assembly Service Board with the approval of the County Assembly, that extrinsic evidence could not vary the written terms of those letters, and that the pre-appointment vetting under the Public Service Commission cured the mischief the statutory provisions targeted. It held Section 77 of the Act is not exclusive of constitutional enforcement, that a judge may raise integrity issues under Article 10 sua sponte, and that no perjury finding was warranted on the cross-appeal. Each party was ordered to bear its own costs in both courts. The judgment binds lower courts on the extrinsic evidence rule, the non-exclusivity of Section 77, and the Article 10 judicial duty.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had been validly appointed the Clerk of Kisii County Assembly even though Sections 8, 12, 13, 14 and 77 of the County Government Act had not been complied with
  2. 2.Whether the petition should have been stayed as matters canvassed therein were caught by the subjudice rule
  3. 3.Whether it was open to the learned Judge to consider integrity issues when the same had not been canvassed before him
  4. 4.Whether the learned Judge should have found that the 1st appellant committed acts of perjury by swearing to falsehoods (cross-appeal)

Key legal issues

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01

Validity of the respondent's appointment as Clerk of Kisii County Assembly

Holding

The appointment was valid; the letters of appointment showed appointment by the County Assembly Service Board with the approval of the County Assembly, satisfying Section 13 and Section 14(3) of the County Government Act.

Reasoning

The court treated the two letters of appointment as unequivocal and binding: the first conveyed the County Assembly's approval of 29 April 2013 and the second the Service Board's appointment of 9 July 2013. The 1st appellant did not challenge the letters' authenticity and could not adduce extrinsic evidence to limit their purpose. Even going behind the letters, the House proceedings of 29 April 2013 showed approval. The pre-appointment vetting through the Public Service Commission meant the mischief of Sections 8, 12, 13 and 14 did not exist in the transitional circumstances.

p. 9
02

Attempt to vary written letters of appointment by affidavit

Holding

The attempt offended Sections 97 and 98 of the Evidence Act and was rejected; documents speak for themselves.

Reasoning

The 1st appellant deposed that the letters were informally issued to enable bank transactions, but he did not exhibit the alleged agreement and could not explain two letters with different remuneration packages. The court, citing its earlier decision in John Onyancha Zurwe v Oreti Atinda and Halsbury's Laws of England, held that extrinsic evidence is not permissible to contradict, vary or add to the terms of a written document.

p. 8
03

Subjudice rule as a bar to the petition

Holding

The consent order of 15 May 2014 under which the parties agreed to proceed defeated any subjudice objection.

Reasoning

The parties had, by consent before Ongaya J, agreed on a timetable for further affidavits, submissions and hearing. Given that clear agreement, the subjudice complaint could not arise.

p. 10
04

Perjury finding on cross-appeal

Holding

The learned Judge could not be faulted in declining to find perjury; conflicting affidavits were resolved on a balance of probabilities and no deponent was cross-examined.

Reasoning

A perjury finding attracts penal consequences and the exceptionally high criminal standard applies. The trial judge had only conflicting affidavit evidence before him, no party sought cross-examination, and believing one set of affidavits on a balance of probabilities was inevitable. The cross-appeal was dismissed.

p. 11

Legal principles established

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  • Where the intention of the parties has been reduced to writing, extrinsic evidence is not admissible to contradict, vary or add to the terms of the document; a party may not vary the terms of a written letter of appointment by affidavit evidence (Sections 97 and 98 of the Evidence Act).
  • Section 77 of the County Government Act, providing appeals to the Public Service Commission for specified officers, is not exclusive and cannot prevent enforcement of a constitutional right by petition.
  • A judge before whom integrity and good governance issues arise is duty bound to give effect to Article 10 of the Constitution irrespective of whether such issues were specifically framed as issues before him.
  • A finding of perjury attracts penal consequences and must meet the high standard applicable to criminal liability; conflicting affidavit evidence resolved on a balance of probabilities cannot ground a perjury finding absent cross-examination.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The cross-appeal is dismissed
  3. 3.Each party bears its own costs in this court and the court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Industrial Court (Kisumu)
Petition No. 88 of 2014
Jurisdiction invoked
First appeal/appeal from judgment and decree of the Industrial Court (departure as of right on facts and law; Court of Appeal appellate jurisdiction over the court below)

Relief refused

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Appellants' appeal against the finding that the respondent was validly appointed Clerk of Kisii County Assembly

The letters of appointment demonstrated compliance with Sections 8, 13 and 14 of the County Government Act; no non-compliance was demonstrated

p. 8

Respondent's cross-appeal seeking a finding of perjury against the 1st appellant

The threshold for a perjury finding had not been met; the trial judge properly resolved conflicting affidavit evidence on a balance of probabilities

p. 11

Costs

Each party bears its own costs in this court and the court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Given the relationship between the parties, we order that each party bears its own costs in this court and the court below.
p. 11Final orders - dismissal of appeal and cross-appeal, each party bearing own costs
The upshot is that, we find no merit in this appeal which we hereby dismiss.
p. 11Disposition - appeal dismissed
In our view, in the absence of any other document stating the contrary, the letters of appointment demonstrated that there was compliance with the provisions of Section 13 of the County Government Act in appointing the respondent as the Clerk of Kisii County Assembly.
p. 8Compliance with Section 13 County Government Act
Where the intention of parties has been reduced to writing it is in general not permissible to adduce extrinsic evidence whether oral or contained in writing
p. 8Extrinsic evidence rule
In our view, that section is not exclusive and cannot prevent enforcement of a constitutional right in the manner the respondent did.
p. 9Section 77 County Government Act not an exclusive remedy
he was duty bound to give effect to the above Article of the Constitution irrespective of whether the same had been specifically framed as issues before him
p. 10Judicial duty under Article 10 national values

Issues in the judgment

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minor

The respondent is named as 'James mariba Nyaoga' in one passage but 'James Omariba Nyaoga' throughout the rest of the judgment

minor

The judgment states the cross-appeal cited five grounds but records only one issue, and the jurisdictional description of the lower court is inconsistent (petition 'Kisii Constitutional Petition No. 88 of 2014' vs 'KISUMU INDUSTRIAL COURT PETITION NO. 88 OF 2014')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Speaker of the County Assembly - Kisii County & 2 others v James Omariba Nyaoga [2015] KECA 52 (KLR)", Case Analysis (2015). Civil Appeal No. 51 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/52/eng@2015-05-21

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