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ELRCDismissedPetition No. 35 of 2020· [2020] KEELRC 113 (KLR)

Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)

Employment and Labour Relations Court of Kenya
16 December 2020
5,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court refused to halt the Senate impeachment process against Nairobi Governor Mike Sonko, holding courts should wait until the political process concludes.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi (Mathews N. Nduma J., 16 December 2020) on a notice of motion dated 30th November 2020 filed by Hon. Mike Sonko Mbuvi Gidion Kioko, Governor of Nairobi City County, in Petition No. 35 of 2020. The Governor sought conservatory orders prohibiting the Nairobi City County Assembly and its Speaker from debating an impeachment Motion dated 25th November 2020 moved by Hon. Michael Ogada Okumu under Article 181(1) of the Constitution, and restraining the Senate Speaker from receiving or endorsing any resulting Resolution; he also sought joinder of Okumu and deemed filing of an amended petition. Interim orders granted by Nzioki Wa Makau J. on 30th November 2020 lapsed after his and Rika J.'s recusals; the Assembly debated and passed the impeachment motion on 3rd December 2020 by 88 of 122 members. The respondents argued the petition was moot, the joinder was never granted, the Assembly was functus officio, no court order was breached, and that under Justus Kariuki Mate v Martin Nyaga Wambora courts should not halt ongoing constitutional processes absent blatant violations. Applying the Supreme Court's Gatirau Munya criteria for conservatory orders in public-law matters, and deferring to separation-of-powers principles drawn from the Speaker of the Senate advisory opinion, Mumo Matemu, Waiguru and Ngilu, the court held that although some inherent merit was discernible, public interest militated against interim intervention before the Senate concluded its process. It also declined to imply the joinder of the 6th Respondent or the amendment of the petition. The application was dismissed in its entirety with costs in the cause.

Key legal issues

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01

Whether conservatory orders should issue to halt the Senate impeachment proceedings pending determination of the Petition

Holding

The application fails; the applicant did not satisfy the Gatirau Munya test and judicial restraint under separation of powers favours awaiting the Senate's conclusion.

Reasoning

The court applied the Supreme Court's Gatirau Munya criteria for conservatory orders in public-law matters. Although inherent merit was discernible, the court entertained sufficient doubts and held that public interest and proportionate magnitudes militate against interim intervention before the Senate concluded its mandated process, citing the Supreme Court's inner-constraints doctrine in Justus Kariuki Mate v Martin Nyaga Wambora and the High Court's approach in Waiguru and Ngilu.

p. 7
02

Whether the intended 6th Respondent was impliedly joined and the amended Petition deemed filed

Holding

No; neither joinder nor amendment was ever expressly granted and cannot be implied.

Reasoning

Counsel argued Nzioki Wa Makau J. inadvertently omitted to grant prayer (ii). The court rejected the invitation to imply the order, holding that in a court of record an express order is required; consequently the petition as filed does not directly deal with the 3rd December 2020 Assembly events, weakening the basis for the interim relief sought.

p. 5
03

The proper judicial posture toward an ongoing gubernatorial impeachment process

Holding

Courts may intervene only in clear actual or impending violations, with restraint, and preferably after the Senate has concluded.

Reasoning

Relying on Justus Kariuki Mate, Mumo Matemu, In the Matter of the Speaker of the Senate, Anne Mumbi Waiguru and Charity Kaluki Ngilu, the court held that each arm of government must respect the others' independence, that the Senate functions like an appellate forum over Assembly impeachment, and that the High Court's supervisory jurisdiction on threshold issues is best exercised after the fact.

p. 6

Legal principles established

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  • Conservatory orders in public litigation are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law injunction criteria.
  • A court may interfere with an ongoing impeachment process only where there is an actual or impending violation of the Constitution or other law, and must tread with utmost caution in observance of separation of powers.
  • Supervisory jurisdiction over the impeachment threshold is best exercised after the conclusion of the process before the County Assembly and the Senate.

Court orders

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  1. 1.The application dated 30th November 2020 is dismissed in its entirety.
  2. 2.Costs in the cause.
Jurisdiction invoked
Articles 159(2), 162(2) of the Constitution and Legal Notice No. 117 of 2013 (Mutunga Rules)

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, "Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)", Case Analysis (2020). Petition No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/113/eng@2020-12-16

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