Peter Kingoina v County Assembly of Nyamira [2017] KECA 694 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that removing a county assembly speaker without adequate notice and a chance to respond on the assembly floor is unconstitutional and invalid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the supplementary record of appeal was properly on record or should be expunged
- 2.Whether there was due process in the impeachment or removal of the appellant as Speaker of the County Assembly of Nyamira
- 3.Whether the appellant was accorded sufficient notice and a meaningful opportunity to respond to the removal motion as required by Section 11(4) of the County Governments Act
- 4.Whether an appearance before the Public Investments and Accounts Committee could substitute for the opportunity to respond on the floor of the County Assembly
- 5.What reliefs, if any, the appellant is entitled to
Key legal issues
#Sufficiency of notice and opportunity to be heard in the removal of a speaker of a county assembly
The notice issued on the same day as the special sitting, with the appellant notified at 11.45 am of a 2.30 pm sitting, did not satisfy Section 11(4) of the County Governments Act, which requires the speaker to be accorded an opportunity to respond to the allegations on the floor of the county assembly.
Section 11(4) of the County Governments Act entitles the speaker to respond to the allegations on the floor of the assembly before debate and voting. A notice issued the same day as the sitting, and notification given only a few hours before the sitting, did not allow the speaker to prepare and respond meaningfully. The Court adopted its earlier articulation of the irreducible minimum content of the right to a fair hearing, requiring written notice with sufficient detail and sufficient time to interrogate the allegations and seek legal counsel.
Whether appearance before a committee of inquiry satisfies the Section 11(4) requirement
Appearance before the Public Investments and Accounts Committee did not satisfy the requirement of an opportunity to respond on the floor of the county assembly.
The learned judge erred in treating the appellant's appearance before the committee and his awareness of the report as sufficient. Section 11(4) requires an opportunity to respond on the floor of the assembly, where the decision on his removal lay. Further, drawing an adverse inference from the appellant's election to go to court was a misdirection, since access to the courts is a right.
Introduction of additional evidence through a supplementary record of appeal
The supplementary record was irregularly introduced because the respondent never applied under Rule 29; it was expunged from the record.
The documents in the supplementary record were new or, in the case of the Hansard, materially at variance with the minutes and stamped long after the lower court proceedings concluded, so they could not have formed part of the record below. Without an application under Rule 29, their introduction prejudiced the appellant, who had no opportunity to interrogate them in the lower court.
Whether the presiding officer of the impeachment sitting must be a deputy speaker recognised in law
The Court declined to determine the complaint regarding the 'deputy speaker' because it was not canvassed before the lower court and there was no material to show he was not duly elected under Article 178(2).
The issue had not arisen in the lower court and did not form the basis of the impugned decision, so there was no evidentiary material before the Court on whether the person presiding had been elected by the members of the county assembly in accordance with Article 178(2) of the Constitution.
Legal principles established
#- Before a county assembly debates and votes on a motion to remove the speaker, the speaker must be accorded an opportunity to respond to the allegations on the floor of the county assembly, with sufficient notice and time to prepare a meaningful response
- An opportunity to appear before a committee of the assembly investigating a matter cannot substitute for the statutory right to respond on the floor of the county assembly
- Additional evidence may only be introduced on appeal through an application under Rule 29 of the Court of Appeal Rules; a supplementary record introducing such evidence without such an application is irregular and may be expunged
- A party who goes to court to seek redress should not have an adverse inference drawn against him for doing so
Court orders
#- 1.The supplementary record of appeal filed on 16th November 2016 is expunged from the record
- 2.The appeal is allowed and the judgment and decree of the Employment and Labour Relations Court dated 25th June 2015 are set aside
- 3.Judgment is substituted for the appellant in terms of prayers 24(a) and (b) of the memorandum of claim dated 24th June 2014
- 4.Prayers 24(c) and (e) of the memorandum of claim are declined
- 5.Prayer 24(d) is remitted to the Employment and Labour Relations Court (before any judge other than M. Onyango, J) to determine entitlement to and assess the quantum of the heads of relief sought thereunder
- 6.The appellant shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Kisumu
- Dispute Number 148 of 2014
- Jurisdiction invoked
- Appeal from the Employment and Labour Relations Court under the Court's appellate jurisdiction (Court of Appeal, Kisumu; memorandum of appeal)
Relief refused
#Prayers 24(c) and (e) of the memorandum of claim
Declined by the Court without substitution
Prayer 24(d) (determination of compensation heads and quantum by this Court)
The suit was determined on pleadings and affidavits without viva voce evidence, so there was no material before the Court to assess it; it was remitted instead
Costs
The appellant shall in any event have the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That cannot, in our view, be sufficient time for purposes of Section 11(4) of the County Governments Act, within which the appellant would have been expected to prepare and respond meaningfully to a motion for his removal as speaker.
An opportunity to appear before the committee could not have been a substitute for an opportunity to appear before the County Assembly on which the fate of the appellant as Speaker lay.
It was incumbent upon the respondent, if it wished additional evidence to be taken, to apply to the court under Rule 29 of the Rules of the Court. It did not do so.
We accordingly allow the appeal and set aside the judgment and decree of the Employment and Labour Relations Court dated 25th June 2015. We substitute therewith judgment for the appellant against the respondent in terms of prayers 24(a) and (b) of the memorandum of claim dated 24th June 2014.
we order that prayer 24(d) of the memorandum of claim be, and is hereby remitted back to the Employment and Labour Relations Court (before any judge of that court other than M. Onyango, J) to determine whether the appellant is entitled to any of the heads of reliefs sought thereunder
The appellant shall in any event have the costs of this appeal.
Issues in the judgment
#The appellant's name appears variously in the judgment as Peter Kingoina, Hon. Peter King'oina, Hon. Mong'are King'oina and Hon. Peter King'oina, with inconsistent spellings in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kingoina v County Assembly of Nyamira [2017] KECA 694 (KLR)", Case Analysis (2017). Civil Appeal No. 84 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/694/eng@2017-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.