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ELRCPartially AllowedPetition of 16th August 2023 (filed 17th August 2023)

Bor & 5 others v Kericho County Assembly & 4 others (Constitutional Petition E006 of 2023) [2024] KEELRC 2080 (KLR)

Employment and Labour Relations Court of Kenya
23 July 2024
8,364 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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Kericho County Assembly unlawfully tried to remove six county officials without a hearing; only the County Public Service Board can remove Chief Officers.

What this practically means

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Executive summary

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Six senior Kericho County officials - the County Secretary, two CECMs and three Chief Officers - petitioned the ELRC after the County Assembly's Ad Hoc Committee, formed on 1st August 2023 to investigate alleged misappropriation of the Londiani road accident fundraiser, recommended their removal from office. They sought declarations that the process violated Articles 28, 41, 47 and 50 and contravened the County Governments Act, conservatory orders, injunctions and damages. The Assembly defended its oversight role under Article 185(3), contending the petitioners were heard; the Governor and CPSB supported the petition, arguing the committee exceeded its mandate and breached separation of powers. Built on the court's ruling of 8th February 2024, which had already found that the petitioners were not accorded a hearing and that Chief Officers fall under the CPSB's disciplinary mandate under section 55 of the County Governments Act, the court held that the Ad Hoc Committee proceeded without fair procedure, violating Articles 47, 41 and 50. The process, having commenced without due procedure, could not be allowed to proceed. However, because the interim conservatory orders had arrested the illegality and the petitioners remained in office without demonstrated loss, the court awarded only nominal damages of Kshs. 200,000 each rather than the Kshs. 2,000,000 per petitioner sought, and made no order of costs. The order does not bar the Respondents from initiating proper, procedural action against the petitioners in future. The petition succeeded in part.

Questions the Court framed

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

  1. 1.Whether the recommendations of the Ad Hoc Committee regarding the removal of the Petitioners from office were procedural and legally founded
  2. 2.What final remedies should be granted in relation to the unprocedural processes initiated by the Respondents

Key legal issues

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01

Whether the Ad Hoc Committee's removal recommendations were procedurally fair

Holding

The process was procedurally flawed: the Petitioners were not accorded a fair hearing before removal was recommended

Reasoning

The court, relying on its ruling of 8th February 2024, found that the Ad Hoc Committee recommended removal without according the Petitioners any right to be heard. Their appearance before the committee was for fact-finding on the fundraiser, not as a disciplinary hearing. A process commenced without due procedure cannot be allowed to proceed, and its recommendations are thereby invalidated.

p. 15
02

Whether the Ad Hoc Committee and County Assembly had mandate to recommend removal of Chief Officers

Holding

They had no such mandate; only the County Public Service Board can remove Chief Officers under section 55 of the County Government Act

Reasoning

The court had earlier determined that Chief Officers are employees of the CPSB, removable only by the Board in exercise of its disciplinary mandate. Recommendations for their removal by an Ad Hoc Committee of the Assembly usurped the CPSB's mandate and could not stand.

p. 15
03

What remedies flow from the violation

Holding

Declarations plus nominal damages of Kshs. 200,000 each, since the court's interim orders arrested the illegality and the Petitioners suffered no great damage

Reasoning

Although rights were violated, the conservatory orders issued on 8th February 2024 stopped the removal process, and the Petitioners remain in office. General or aggravated damages were therefore unwarranted; nominal damages suffice. The order does not bar the Respondents from initiating proper and procedural action in future.

p. 16

Legal principles established

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  • An administrative or quasi-judicial process that recommends removal of a public officer without affording a hearing violates Articles 47, 41 and 50 of the Constitution and cannot be allowed to proceed
  • Chief Officers are employees of the County Public Service Board and can only be removed by the Board exercising its disciplinary mandate under section 55 of the County Government Act

Court orders

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  1. 1.A declaration that the 1st Respondent through the Ad Hoc Committee formed on 1st August 2023 violated the Petitioners' constitutional rights under Articles 47, 41 and 50 of the Constitution
  2. 2.Nominal damages of Kshs. 200,000 to each Petitioner
  3. 3.A declaration that Chief Officers can only be removed from office by the County Public Service Board under section 55 of the County Government Act
  4. 4.No order of costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 22 and 23 of the Constitution; sections 12(1) and (3) of the Employment and Labour Relations Court Act

Relief refused

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General, aggravated and punitive damages of Kshs. 2,000,000 per petitioner

The illegality was arrested by the court's interim conservatory orders; petitioners remain in office and suffered no great damage

p. 15

Costs of the Petition

The court declined to award costs

p. 16

Costs

No order of costs - each party to bear their own costs

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.

It is indeed true that the 1st Respondent through the Ad hoc Committee formed on 1st August 2023 proceeded without fair procedure and so violated the Petitioners Constitutional rights under Articles 47, 41 and 50 of the Constitution.
p. 15violation of fair hearing rights
I also determined that Chief Oficers are employees of the County Public Service Board (CPSB) and can only be removed from ofice by the said head exercising its disciplinary mandate under section 55 of the County Government Act.
p. 15mandate to remove Chief Officers
It was therefore true that the recommendations for the removal of the Chief Oficer by an Adhoc Committee could not lie.
p. 15nullity of removal recommendations
I will therefore find for the Petitioners and award them nominal damages of Kshs. 200,000 each since the illegality was arrested by this court and not allowed to proceed.
p. 15remedy - nominal damages
There will be no order of costs.
p. 16final orders - costs

Issues in the judgment

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minor

Petition date printed as '16th August, 202' (typo) and internal inconsistencies in figures: cash collected stated as 'Kshs. 13,6653,660' while Respondents state 'Kshs 13,682,660'

minor

County Governments Act cited with conflicting chapter numbers in the judgment

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 2080 (KLR)", Case Analysis (2024). Petition of 16th August 2023 (filed 17th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2080/eng@2024-07-23

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