Barnabas K Ngeno v County Assembly of Kericho & another [2021] KEELRC 68 (KLR)
The bottom line
#The Kericho CECM's impeachment was struck down because the County Assembly skipped mandatory notice and procedural steps before investigating him.
What this practically means
#Executive summary
#Key legal issues
#Whether the motion for impeachment complied with section 40 of the County Governments Act and Standing Order 76.
The motion was incompetent: it was signed by the mover alone, not supported by at least one quarter/third of members, and the entire process was completed in one day contrary to the mandatory 3 days' notice.
Section 40(2) of the County Governments Act requires a member supported by at least one third of all members to propose the impeachment motion, and Standing Order 76 prescribes a mandatory procedure including delivery of the proposed motion to the Clerk, Speaker's approval, three days' notice and a list of signatures in support. The respondents filed only a Notice of Motion signed by the mover alone and never availed the motion or a schedule of supporting signatures despite a request by the petitioner. The whole process occurred in one day, breaching the mandatory timeline. The motion was therefore void ab initio.
Whether the petitioner's right to fair administrative action under Article 47 and section 4 of the FAA Act was violated.
Yes - the petitioner was invited to appear before the select committee without being given the motion, the allegations, the supporting documents or the provisions of law allegedly violated.
Article 47 guarantees fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, amplified by section 4 of the Fair Administrative Action Act which requires prior and adequate notice of the nature and reasons for proposed action. The letter of 26/1/2021 summoning the petitioner did not enclose the substantive motion or allegations. Following the Court of Appeal in the Kisumu County Assembly case, the notice must contain substantial information with sufficient detail. The petitioner was thus invited to defend allegations he did not know in advance, without any outlined scope.
Whether the impeachment had a lawful basis given the reconstitution of the Municipal Boards.
No - the reconstitution was lawful, having been done pursuant to the Urban Areas and Cities (Amendment) Act No. 3 of 2019 and upheld in ELRC Petition No. 6 of 2019, and the petitioner was being scapegoated for a collective Executive decision.
The court noted the 2019 amendment to the Urban Areas and Cities Act required all existing municipal boards to be reconstituted, following an advisory from the Attorney General. The court in Magerer Langat's petition had already held the reconstitution lawful. The report of the reconstitution was approved by the County Executive Committee before being forwarded to the Assembly, and the respondents did not rebut this. Isolating the petitioner for collective executive action could only be an act of malice and victimization contrary to Article 236.
Legal principles established
#- Courts may intervene in parliamentary/assembly procedures where the Constitution or statute is breached; internal procedure is otherwise protected by separation of powers.
- A motion wanting in form and mandatory procedure is null and void ab initio and cannot found a fair administrative process.
- A person facing impeachment must be given prior and adequate notice of the nature and reasons for the administrative action, including the allegations against him.
- Courts intervene in internal disciplinary processes only to put them back on procedural rails, not to stop them altogether.
Court orders
#- 1.Declaration in terms of prayers A, B, C & D in the petition (national values bind the respondents; no victimization or impeachment without due process; a person facing impeachment under section 40 of the County Governments Act is entitled to be informed of the grounds before commencement of proceedings; the impeachment proceedings commenced by Gazette Notice No. 495 of 2021 and letter dated 26th January 2021 are a nullity contrary to Article 50(1)).
- 2.Order of certiorari quashing the decision of the 1st respondent dated 22.1.2021 approving the formation of a select committee to investigate the conduct of the petitioner.
- 3.Permanent injunction restraining the respondents from initiating any impeachment proceedings against the petitioner based on the reconstitution of the Municipal Boards.
- 4.The petitioners awarded costs of the petition.
- Jurisdiction invoked
- Constitution of Kenya 2010, Articles 10, 23, 47, 50 and 236; section 40 of the County Governments Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas K Ngeno v County Assembly of Kericho & another [2021] KEELRC 68 (KLR)", Case Analysis (2021). Kericho ELRC Petition (filed with Notice of Motion dated 1/2/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/68/eng@2021-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.