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ELRCPartially AllowedPetition (Notice of Motion dated 16th August, 2023)

Bor & 5 others v Kericho County Assembly & 4 others (Constitutional Petition E006 of 2023) [2024] KEELRC 169 (KLR)

Employment and Labour Relations Court
8 February 2024
8,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked Kericho County from removing six officials because they were never given a fair chance to defend themselves.

What this practically means

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Executive summary

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This is a ruling on the Petitioners'/Applicants' Notice of Motion dated 16th August 2023 seeking conservatory orders and injunctions restraining implementation of recommendations of an Ad Hoc Committee of the Kericho County Assembly for the removal of six county officers (three CECMs and three Chief Officers) over the handling of funds raised for victims of the 30th June 2023 Londiani road accident, in which 53 people died. The Petitioners argued the committee's process breached constitutional principles and natural justice, exceeded its terms of reference, and that the County Assembly lacked power to recommend removal of the County Secretary and Chief Officers, who fall under the County Public Service Board. The 1st to 3rd Respondents defended the Assembly's oversight role under Article 185(3), while the 4th and 5th Respondents supported the application, contending the Assembly breached separation of powers. Justice Hellen Wasilwa found that although the applicants appeared before the Ad Hoc Committee, they were only invited to give information and were never accorded an opportunity to be heard before adverse findings were made; the right to be heard arises at that stage. The court further held that Chief Officers are CPSB employees removable only through due disciplinary process under Section 55 of the County Government Act. Concluding the applicants had established a prima facie case with probability of success, the court restrained the 4th Respondent from initiating the removal process or taking further steps on the recommendations pending hearing of the petition, with costs in the petition.

Questions the Court framed

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

  1. 1.Whether the Petitioners/Applicants have satisfied the threshold for grant of conservatory orders pending the hearing and determination of the Petition
  2. 2.Whether the Petitioners have made a case for grant of an order of injunction pending the hearing and determination of the Petition
  3. 3.Who should bear the costs of the Application

Key legal issues

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01

Fair hearing in the assembly-initiated removal process under Section 40 of the County Government Act

Holding

The process was flawed because the applicants were summoned to give information, not to defend themselves, and were never accorded a hearing before findings against them were made

Reasoning

Section 40 of the County Government Act envisages a fair and just process for removal of CECMs, with a right to appear before the select committee. The applicants appeared before the ad hoc committee only for fact-finding purposes. Since the committee's findings leave them no other avenue to explain culpability, the right to be heard arises at that stage. Its denial renders the process flawed and establishes a prima facie case.

p. 16
02

Proper forum for removal of Chief Officers

Holding

Chief Officers, being CPSB employees, cannot be removed on the Assembly's recommendations; only the CPSB, exercising disciplinary control under Section 55 of the County Government Act, may remove them after due process

Reasoning

The court distinguished CECMs from Chief Officers. Chief Officers are employees of the CPSB, and any recommendation for their removal must be acted upon by the CPSB through disciplinary procedures under Section 55 of the County Government Act, not by the Governor on the Assembly's recommendation.

p. 16
03

Whether conservatory orders should issue

Holding

The applicants established a prima facie case with a probability of success warranting interim conservatory relief restraining the removal process

Reasoning

Having found the investigative process procedurally flawed for want of a fair hearing, the court concluded the petition was arguable with a probability of success. Since the respondents had executed their mandate and recommendations were with the Governor for implementation, interim relief preserving the position pending the petition was appropriate.

p. 16

Legal principles established

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  • A county ad hoc committee process recommending removal of a CECM must afford the affected officer a genuine opportunity to be heard; being summoned merely to give information is not a fair hearing
  • Chief Officers are employees of the County Public Service Board and can only be removed by the CPSB following due process under Section 55 of the County Government Act

Court orders

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  1. 1.Orders restraining the 4th Respondent, their agents, servants or any person whatsoever from initiating the removal process or taking any further steps in relation to the recommendations made by the 1st, 2nd and 3rd Respondents pending the hearing and determination of the Petition
  2. 2.Costs in the petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 20, 21, 22, 23, 27, 28, 35, 41, 43, 47 & 50 of the Constitution

Relief refused

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Costs of the application to the applicants

The court ordered only that costs be in the petition rather than awarding costs of the application

p. 16

Costs

Costs in the petition.

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 right to be heard must be exercised at this level which I find was not accorded to the applicants.
p. 16fair hearing in county assembly removal processes
On this ground alone, I find the process as conducted was fiawed and therefore cannot be allowed as it were.
p. 16procedural flaw in ad hoc committee process
For the reasons explained in this ruling, I find that the applicants have established a prima facie case with a probability of success to warrant issuance of the orders sought.
p. 16threshold for conservatory orders
I therefore grant orders restraining the 4th respondents, their agents, servants or any person whatsoever from initiating the removal process or taking any further steps in relation to the recommendations made by the 1st, 2nd and 3rd respondents pending the hearing and determination of this petition.
p. 16final orders of the court

Issues in the judgment

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minor

The judgment inconsistently identifies the Governor's power to dismiss a CECM, citing Section 30 in the court's analysis but Section 31 in the respondents' pleadings

minor

The Supreme Court citation in Senate v Council of County Governors is misprinted as [2033] KESC 7

minor

The ruling is labelled a 'ruling' in the deliverance paragraph while it is described as a judgment for briefing purposes

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, "Bor & 5 others v Kericho County Assembly & 4 others (Constitutional Petition E006 of 2023) [2024] KEELRC 169 (KLR)", Case Analysis (2024). Petition (Notice of Motion dated 16th August, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/169/eng@2024-02-08

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