John Mwivithe Mutie v Speaker, Kiambu County Assembly & 2 others; County Secretary & 2 others (Interested Parties) [2022] KEELRC 233 (KLR)
The bottom line
#Kenya's Employment Court confirmed that constitutional petitions cannot be thrown out over party-joining technicalities, and counties don't need the Attorney-General to defend them.
What this practically means
#Executive summary
#Key legal issues
#Joinder of Respondents and Interested Parties
The named Respondents and Interested Parties are central to the dispute and properly before the Court; the Civil Procedure Rules on joinder do not apply to ELRC constitutional petitions.
The court held the parties are directly linked to the alleged violations. Rule 18 of the E&LRC Procedure Rules, 2016 permits joinder of interested persons, and Rules 5(a) and 5(b) of the Mutunga Rules bar defeat of a petition for misjoinder or non-joinder. Rule 7(1) and (2) allow joinder of Interested Parties, and the Interested Parties themselves did not protest their inclusion.
Whether the Attorney-General should have been sued
Proceedings against County Governments are not brought by or defended by the Attorney-General, who represents only the National Government under Article 156.
Article 156 makes the Attorney-General Principal Legal Advisor to the (National) Government and Article 156(4)(b) requires representation of the National Government only. Counties must maintain their own County Attorney under the County Attorney Act, 2020, and the functions under Section 5 of the Office of the Attorney-General Act, 2012 relate to the National Government. No rule required joining the Attorney-General or County Attorney.
Attainability of remedies and leave
The reliefs sought are attainable under Article 23(3) of the Constitution and are not limited by the Government Proceedings Act; no leave is required to institute the Petition or Application.
The court found the provisional and substantive remedies sought fall within Article 23(3) constitutional remedies, rejecting the submission that only declaratory orders can issue against Government. It further found no rule requiring the Petitioner to seek leave to petition, bring the Application, or enforce existing orders.
Legal principles established
#- Order 1 Rules 10(2) and 11 of the Civil Procedure Rules do not apply to proceedings before the Employment and Labour Relations Court
- A constitutional petition cannot be defeated by misjoinder or non-joinder of parties
- The Attorney-General does not represent County Governments in court; Counties have their own County Attorney under the County Attorney Act, 2020
Court orders
#- 1.The Notice of Preliminary Objection filed by the Respondents through Mr. Mutuku, dated 17th January 2022, is rejected
- 2.Costs to the Petitioner
- Jurisdiction invoked
- Article 23(3) of the Constitution; Employment and Labour Relations Court [Procedure] Rules, 2016 (Rule 7) read with the Constitution of Kenya [Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution] Practice and Procedure Rules, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mwivithe Mutie v Speaker, Kiambu County Assembly & 2 others; County Secretary & 2 others (Interested Parties) [2022] KEELRC 233 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/233/eng@2022-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.