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ELRCPartially AllowedPetition (with Notice of Motion dated 6th September 2018) — ELRC, Nairobi

Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2019] KEELRC 1717 (KLR)

Employment and Labour Relations Court
7 May 2019
10,895 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court nullified the Nairobi Assembly Speaker's impeachment because she was given under two hours' notice and no fair chance to respond.

What this practically means

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Executive summary

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The Petitioner, Speaker of the Nairobi City County Assembly appointed in September 2017, was impeached by the Assembly sitting as a Whole House Committee on the afternoon of 6th September 2018 while, on her account, she was attending a Devolution Seminar in Malindi. She filed an urgent notice of motion (admitted as an originating process under Article 22(3)(b)) and a Petition seeking declarations that her impeachment violated Articles 10, 27, 28, 41, 47, 50, 73 and 232, and quashing, certiorari and prohibition orders. The Respondents raised jurisdiction and competency objections (preliminary objections dismissed by Radido J on 14th September 2018) and contended that due process under Article 178(3), section 11 of the County Governments Act and Standing Order 65 was followed, that separation of powers barred interference, and that damages should suffice. Maureen Onyango J held the ELRC had jurisdiction since employment rights under Article 41 and fair hearing rights under Articles 47 and 50 were engaged. She found the special sitting request and gazette notice did not disclose the impeachment purpose; Standing Order 65 was amended through the wrong committee to strip out procedural safeguards; and service of summons at 1.30 pm for a 3.10 pm sitting on four unspecified charges denied the Petitioner a fair hearing and fair administrative action. Separation of powers did not shield such conduct. The Petition was allowed in part: declarations issued that the impeachment and the amendment of Standing Orders were unconstitutional and null; certiorari quashed the impeachment; prohibition and injunction issued; the 1st Respondent was restrained from interfering with her employment terms. Damages were refused, conservatory orders having preserved her in office. The 2nd Respondent was ordered to pay costs.

Questions the Court framed

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

  1. 1.Whether the Court has the jurisdiction to hear and determine the matter before it
  2. 2.Whether the proceedings are fatally and incurably defective
  3. 3.Whether the Petitioner's constitutional rights were violated by the Respondents
  4. 4.Whether the Petitioner is entitled to the Orders sought

Key legal issues

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01

Jurisdiction of the ELRC over impeachment of a County Assembly Speaker

Holding

The Court has jurisdiction: employment rights of the Speaker fall within Article 41, and Articles 47 and 50 are engaged; the court confines itself to procedure, not merits of legislative business.

Reasoning

The Court, established under Article 162(2) and the ELRC Act, has High Court status and jurisdiction under Article 165(3)(b) over rights violations arising from employment relationships. Judicial authority is exercised cautiously given separation of powers, but fair hearing and fair administrative action rights are non-derogable, so the Court interrogates the procedures. The issue was already settled by Radido J's ruling of 14th September 2018 dismissing the preliminary objection.

p. 8
02

Competency of proceedings commenced by notice of motion and sworn by the Petitioner's personal assistant

Holding

The proceedings are competent; the affidavit by the personal assistant was authorised and the motion was admitted as an originating process under Article 22(3)(b) due to urgency.

Reasoning

Sections 4(4) and 5(2)(b) of the County Assembly Services Act preclude assembly members from influencing Service employees, not the swearing of an affidavit by a personal assistant. Rule 10(2) of the Mutunga Rules permits the petition to be signed by the advocate, and Rule 10(3) and Article 159(2)(d) favour substantive justice. The motion had been admitted as originating process on 6th September 2018.

p. 8
03

Whether the impeachment violated the Petitioner's rights to fair hearing and fair administrative action

Holding

Yes. The special sitting request did not disclose the impeachment purpose, Standing Order 65 was amended to remove procedural safeguards, and the Petitioner received inadequate notice and no opportunity to respond.

Reasoning

The request and gazette notice did not indicate the sitting concerned impeachment. The amendment of Standing Order 65 removed the ad hoc committee and notice requirements and was tabled before the wrong committee contrary to Standing Order 247. Service of summons at 1.30 pm for a 3.10 pm sitting on four charges lacking particulars fell short of section 4(3) of the Fair Administrative Action Act, Article 47 and Article 50, and section 11(4) of the County Governments Act required an opportunity to respond on the floor.

p. 11
04

Whether separation of powers barred judicial intervention and whether damages should replace the orders sought

Holding

Intervention was warranted because the respondents acted with ulterior motive and violated the Constitution; damages were inappropriate since conservatory orders had preserved the status quo.

Reasoning

Following Wambora and Speaker of the Senate, courts exercise restraint but may intervene where Standing Orders with constitutional underpinning are breached. Here the Assembly deliberately overthrew its own protections. Since interim orders had maintained the Petitioner in office since the impeachment, awarding damages would condone disobedience of court orders per Hadkinson v Hadkinson.

Legal principles established

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  • Where a question of a right or fundamental freedom in employment and labour relations is raised, the ELRC has jurisdiction notwithstanding that the decision impugned is that of a legislative organ; separation of powers does not oust scrutiny of procedures that violate constitutional rights.
  • A speaker of a county assembly is a public officer protected under Article 236 from removal without due process, and service of summons 1 hour 40 minutes before proceedings on four unspecified charges does not constitute a fair hearing.
  • Amendment of Standing Orders to remove procedural protections with the ulterior motive of removing an office-holder is an abuse of power that courts may intervene against despite separation of powers.

Court orders

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  1. 1.Declaration that the 2nd Respondent's purported impeachment of the Petitioner on the afternoon of 6th September 2018 breached her rights under Articles 27(1), 27(2), 27(3), 41, 47(1) and 50
  2. 2.Declaration that the purported Committee of the Whole House had no powers or jurisdiction to impeach the Petitioner as Speaker absent due process
  3. 3.Injunction and prohibition against the 2nd Respondent restraining any Motion to remove the Petitioner in violation of fair administration and due process
  4. 4.Order quashing and nullifying the decision impeaching the Petitioner made on 6th September 2018
  5. 5.Order of judicial review in the nature of certiorari to quash the decision of 6th September 2018 impeaching the Petitioner
  6. 6.Order of judicial review in the nature of prohibition against the 1st and 2nd Respondents carrying out any removal process without complying with the law and Standing Orders
  7. 7.Order quashing and nullifying the decision amending the Standing Orders of Nairobi City County Assembly made on 6th September 2018
  8. 8.The 1st Respondent restrained from interfering with the Petitioner's terms of employment as Speaker in consequence of the purported impeachment
  9. 9.The 2nd Respondent to pay the Petitioner's costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution read with section 4(1) of the Employment and Labour Relations Court Act; Articles 22, 23 and 165(3)(b)
Consolidated with
Application dated 6th September 2018, determined together with the Petition

Relief refused

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Declaration of breach of Articles 28 (dignity) as sought in the Petition

The final declaration omitted Article 28 from the list of infringed rights; findings focused on Articles 10, 27, 41, 47 and 50

Declaration of violation of Article 10(2)(b) public participation couched as such / other ancillary declarations not specifically granted

The court's declarations listed only Articles 27(1), 27(2), 27(3), 41, 47(1) and 50

Damages in lieu of the quashing orders

Conservatory orders had been in place since the impeachment and the Petitioner was still in office; damages would condone disobedience of court orders

p. 12

Costs

The 2nd respondent shall pay the petitioner's costs.

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.

I thus find that this Court has the jurisdiction to hear this matter as it involves an alleged gross violation of the Constitution and the Petitioner’s rights to employment as a Speaker of the County Assembly of Nairobi.
p. 8Jurisdiction of the ELRC over impeachment of a county assembly speaker
Even had she been present in her office and had been personally served with the summons, this period from 1.30 pm to 3.10 pm would not qualify as sufficient opportunity to respond to the charges against her
p. 10Inadequate notice — fair hearing
the conduct of the 1st respondent calls for intervention of the court as it deliberately set out to overthrow the protections in its Standing Orders with the ulterior motive of removing the petitioner from office without compliance with constitutional and statutory provisions.
Abuse of legislative power — limits of separation of powers
Awarding her damages would be tantamount to the court removing her from office or condoning and allowing the respondents to get away with a disobedience of a court order.
p. 12Why damages were refused
A declaration do and is hereby issued that the purported Committee of the Whole House of the 2 nd Respondent sitting on the afternoon of 6th September 2018 had no powers and/or jurisdiction to impeach the Petitioner as Speaker of the Nairobi City County Assembly without due process accorded to her.
p. 12Final orders — declaration on impeachment
An order of Judicial Review, in the nature of Certiorari do and is hereby issued to forthwith bring to from this Court the decision of the 2nd Respondent, dated 6th September 2018 impeaching the Petitioner as the Speaker, Nairobi City County Assembly, and the same be quashed forthwith.
p. 13Final orders — certiorari
The 2nd respondent shall pay the petitioner’s costs.
p. 13Costs

Issues in the judgment

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minor

Judgment alternates between attributing the Standing Order 65 amendment and the impeachment conduct to the 1st and 2nd Respondents inconsistently, e.g. 'Any rational personal considering the conduct of the 1 st respondent...' versus findings that 'The 2nd respondent abused the powers bestowed upon them with impunity', creating ambiguity as to which respondent performed which acts.

minor

Petition at Article 231(1)(g) is cited in submissions though the constitutional provision governing removal of a speaker is Article 178; the judgment also recites 'Section 33(4)' immediately after quoting section 11 of the County Governments Act without identifying the statute.

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, "Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2019] KEELRC 1717 (KLR)", Case Analysis (2019). Petition (with Notice of Motion dated 6th September 2018) — ELRC, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1717/eng@2019-05-07

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