Republic v Speaker, County Assembly of Busia & 2 others Ex parte Miriam Wakaya Obura & another [2021] KEELRC 92 (KLR)
The bottom line
#Kenya's High Court refused to block Busia County Assembly's rejection of two board nominees because they were public officers, barred by law from the appointment.
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 court has jurisdiction to grant the order of stay despite the County Assemblies Powers and Privileges Act
- 2.Whether there is anything to stay, given the state of the decision-making process
- 3.Whether the court should exercise its discretion to grant leave to operate as stay on a prima facie basis
Key legal issues
#Jurisdiction to stay a decision of a County Assembly
The court has jurisdiction notwithstanding the ouster in the County Assemblies Powers and Privileges Act, but must be restrained in the face of legislative processes per the Supreme Court's guidance in the Wambora case
The court noted section 10 of the County Assemblies Powers and Privileges Act ousts questioning of Assembly proceedings, but held the Constitution as supreme law permits review where the Assembly breaches it. It relied on the Supreme Court advisory opinion that courts assert constitutional supremacy while remaining averse to internal parliamentary procedures. It also cited the Supreme Court's caution against rushing to issue conservatory orders against other arms of government.
Whether there is a decision capable of being stayed
No - the Assembly's decision was complete and communicated to the Governor, so a stay would serve no purpose
The Hansard showed the nominees appeared before and were heard by the Assembly Committee on Appointments, whose report was considered by the plenary. The decision to reject was final upon the Speaker's communication of 2nd December 2021 requesting fresh nominations. Since the process would begin afresh with new names, a stay would be ineffectual.
Whether the Applicants established a prima facie case for the discretionary stay
They did not; the Respondents discharged their mandate legally and there was no constitutional violation
The Hansard showed debate occurred on the nominees' qualification as public officers, whom the Applicants admitted to being. Section 58(13)(b) of the County Government Act 2012 disqualifies public officers from board membership. The Speaker's ruling directing fresh nominations was supported by Section 58(A)(10) of the County Government (Amendment) Act 2020. The relied-upon Standing Order 65 was found irrelevant.
Legal principles established
#- Proceedings or decisions of a County Assembly acting in accordance with the County Assemblies Powers and Privileges Act cannot be questioned in court, but the court may still intervene where a decision offends the Constitution
- Where the County Assembly rejects a nominee, the Speaker must communicate the rejection to the Governor within five days and request fresh nominations from the shortlisted persons
- A person is not qualified for appointment to a County Public Service Board if they are a state or public officer
Court orders
#- 1.The application for leave granted on 8th December 2021 to operate as stay of the decision and ruling of the 1st and 2nd Respondents rejecting the Applicants' nominations and barring resubmission of their names is disallowed
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 165(6) & (7) of the Constitution; Section 9 of the Fair Administrative Action Act; Order 53 Rule 1(4) of the Civil Procedure Rules 2010
Relief refused
#Stay of the decision and ruling of the 1st and 2nd Respondents in County Assembly sitting No. 129 of 1st December 2021 rejecting the Applicants' nominations and barring resubmission of their names
The decision-making process was complete when the Speaker communicated the rejection to the Governor, so a stay would not be efficacious; and on the merits the Assembly acted lawfully, the Applicants being public officers disqualified under Section 58(13)(b) of the County Government Act 2012
Costs
Costs in the cause.
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.
Consequently I disallow the application for leave granted to the Applicants on the 8 th December, 2021 to operate as stay of the decision and ruling of the 1 st & 2nd Respondents rejecting the Applicant’s nominations to the Busia County Public Service Board and barring the applicants names from being resubmitted
However, the court can still question the decision of Assembly if it offends the Constitution of Kenya as the Supreme law of the Land
the decision making process having been complete when the Speaker communicated the Assembly decision to the Governor the order of stay then would not be efficacious
a person shall be qualified to be appointed as a member under subsection (1) of County Public Service Board if that person is not a state or Public Officer
Issues in the judgment
#Judgment inconsistently cites the County Government (Amendment) Act - as 'County Government amendments Act 20220' in one passage and correctly as 'County Government( Amendment) ) Act No. 11 of 2020' in another
Judgment refers to Articles 22, 23, 262 and 165 of the Constitution as the basis of jurisdiction, but the court itself notes Article 262 is irrelevant, and Article 263 (intended?) is not clarified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Speaker, County Assembly of Busia & 2 others Ex parte Miriam Wakaya Obura & another [2021] KEELRC 92 (KLR)", Case Analysis (2021). Judicial Review Application (Chamber Summons dated 6th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/92/eng@2021-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.