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ELRCDismissedNot stated in the excerpt

Mike Sonko Mbuvi Gidion Kioko v Clerk, Nairobi City County Assembly & 4 others [2020] KEELRC 311 (KLR)

Employment and Labour Relations Court
23 October 2020
4,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it can hear a Governor's challenge to impeachment, because impeachment is treated as a workplace disciplinary process.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Byram J on 23 October 2020, determines a preliminary objection raised by the 2nd respondent against a petition and urgent application filed on 28 February 2020 challenging impeachment proceedings initiated against the petitioner, the Governor of Nairobi City County. On 2 March 2020 the Court had granted interim orders restraining the proposed impeachment motion except in strict compliance with Standing Orders 67 and 72 of the County Assembly. The 2nd and 3rd respondents argued that the ELRC lacked jurisdiction because there was no employer-employee relationship between the Governor and the respondents, and that entertaining the petition would intrude into the workings of the County Assembly contrary to the separation of powers. The petitioner contended that his labour rights under Article 41 were threatened by the impeachment, that a Governor is an employee because he is remunerated, and that issues of legality and constitutionality of the process are justiciable. The Court held that a Governor is an employee of the state within the Employment Act, 2007, that impeachment is a disciplinary process and a human resource function squarely within the Court's jurisdiction under Article 162(2)(a), Article 165(5)(b) and section 12 of the ELRC Act (including section 12(2) permitting complaints by or against an employee), and that adjudicating the petition does not undermine institutional comity. Relying on its own precedents, including Birir, Mubea, Abdikadir Suleiman and Omtatah, the Court dismissed the preliminary objection with costs to the petitioner, extended the interim orders until further orders or the next mention date, and directed parties to take steps for expeditious hearing of the application and petition, with mention on 27 October 2020.

Questions the Court framed

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

  1. 1.Whether the ELRC has jurisdiction over a petition challenging impeachment proceedings against a Governor, given the alleged absence of an employer-employee relationship
  2. 2.Whether entertaining the petition intrudes into the workings of the County Assembly contrary to institutional comity and separation of powers
  3. 3.Whether the 2nd respondent's preliminary objection meets the Mukisa Biscuits standard of a pure point of law

Key legal issues

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01

Employment status of a Governor

Holding

A Governor is an employee within the Employment Act because he is paid a salary, notwithstanding being a state officer.

Reasoning

The Court held that a state officer like a Governor is in employment of the state, paid a salary set by the Salaries and Remuneration Commission. Following its own precedents in Birir and Mubea, public and state officers are servants of the people, engaged within constitutional and statutory frameworks, so the master-servant test does not govern public employment.

p. 4
02

Nature of impeachment as a labour dispute

Holding

Impeachment is a disciplinary process constituting a human resource function, placing the dispute within the ELRC's jurisdiction.

Reasoning

The Court reasoned that removal from office is cessation of employment and implicates labour rights. Disciplinary process is a human resource function undertaken within constitutional and statutory provisions, so the dispute relating to or arising out of employment falls under Article 162(2)(a) and section 12 of the ELRC Act.

p. 4
03

Separation of powers and justiciability

Holding

Entertaining the petition does not undermine institutional comity; courts may intervene where impeachment proceedings contravene the Constitution, statutes or standing orders.

Reasoning

The Court found no intrusion into the political realm. Where an impeachment process is alleged to be proceeding unlawfully or unconstitutionally, the aggrieved person may move the Court for declarations and judicial review remedies. Article 236(b) protection of public officers against removal without due process anchors the petition's justiciability.

p. 5
04

Preliminary objection standard

Holding

The preliminary objection failed because the Court found it had jurisdiction on the pleaded facts.

Reasoning

The petitioner had argued the objection did not meet the Mukisa Biscuits standard, and the Court, having found jurisdiction existed as a matter of law on the pleadings, dismissed the objection with costs to the petitioner.

p. 4

Legal principles established

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  • A Governor is an employee of the state within the Employment Act, and impeachment is a disciplinary/human resource process within the ELRC's jurisdiction.
  • The ELRC's jurisdiction extends to disputes about employment even where the parties are not strictly employees or employers, by virtue of section 12(2) of the ELRC Act.
  • Issues of legality and constitutionality of impeachment proceedings are justiciable and do not offend separation of powers.

Court orders

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  1. 1.Preliminary objection dated and filed on 04.03.2020 by the 2nd respondent dismissed
  2. 2.2nd respondent to pay the petitioner's costs of the preliminary objection
  3. 3.Interim orders given on 02.03.2020 as extended extended until further orders of the Court or the next mention date
  4. 4.Parties to take steps for expeditious hearing of the application dated 27.02.2020 and the petition; mention on 27.10.2020

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(a), 165(5)(b), 22, 236 and 258 of the Constitution; section 12 of the Employment and Labour Relations Court Act, 2011

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.

The 2nd respondent to pay the petitioner’s costs of the preliminary objection.
p. 5costs of the preliminary objection
The interim orders herein given on 02.03.2020 as extended are hereby extended until further orders by the Court or until the next mention date.
p. 5extension of interim orders
the Court returns that it has jurisdiction to entertain the present petition
p. 4jurisdiction of the ELRC over impeachment of a Governor
The Court finds that the impeachment is clearly a disciplinary process for removal of the petitioner from office. Disciplinary process is obviously a human resource function
p. 4impeachment as a disciplinary/HR process
issues of constitutionality and legality of the impeachment process are justiciable and fall within the determination by the Court
p. 5justiciability and separation of powers
he needs not wait for his rights and fundamental freedoms to be violated and thereafter move the Court but he is entitled to arrest the alleged threatened violation
p. 5threatened violation of rights

Issues in the judgment

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minor

The findings are introduced twice with the ordinal 'Third' ('Third, parties are in agreement...' and 'Third, the Court finds that by entertaining the petition...'), indicating a numbering error in the judgment.

minor

The case number, full party names and neutral citation are not stated in the excerpt provided; parties are identified only by role and number.

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 & 4 others [2020] KEELRC 311 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/311/eng@2020-10-23

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