Republic v Elgeyo Marakwet County Assembly Service Board & 2 others; Kiptum (Exparte Applicant) (Judicial Review E004 of 2023) [2025] KEELRC 331 (KLR)
The bottom line
#Kenya's Eldoret court quashed an assembly clerk's suspension because her employers skipped the legally required fair disciplinary process.
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 Applicant merits the grant of the judicial review orders sought (certiorari and prohibition) against the decisions of the 1st Respondent
Key legal issues
#Whether the suspension decision of 24th October 2023 complied with section 23(1) of the County Assembly Services Act and natural justice
The suspension letter did not comply with section 23(1)(b); the charges were vague, general and without particulars, and the decision was made at the Speaker's Kamukunji without giving the Applicant a chance to respond.
The suspension letter issued the same day as the Speaker's Kamukunji did not contain charges with particulars. No evidence showed the Board met and considered the complaints before suspending the Applicant. The court inferred that the decision was made at the Kamukunji by persons without authority, denying the Applicant a hearing before adverse action, contrary to Articles 41, 47 and 236 of the Constitution and section 4 of the Fair Administrative Action Act.
Whether the supply of fresh charges and better particulars shortly before the hearing denied the Applicant a fair hearing
Yes. Two letters with substantially different charges, and particulars supplied at 9.00 pm on the eve of the hearing, denied adequate preparation and suggested a predetermined conclusion.
The second letter of 27th October 2023 contained fresh charges substantially different from the suspension letter and still lacked sufficient particulars. The Applicant's request for better particulars was answered at 9.00 pm on the eve of the hearing. The court held this denied her a fair hearing and gave the impression the process was hurriedly convened to reach a predetermined, non-objective conclusion.
Whether the referral of the Board's report to the Assembly without a notice of motion complied with section 23(2), (3) and (4) of the County Assembly Services Act
No. The Board did not submit a notice of motion to the Speaker as required; the Speaker forwarded only a report, violating section 23(3) and (4).
Section 23(2) requires the Board to submit a notice of motion to the Speaker seeking revocation of the Clerk's appointment. The document the Speaker described as a motion was merely a letter forwarding the Board's report; the Hansard of 14th and 15th November 2023 referred to a report, not a motion, and no motion was attached to the Board's report. The Speaker's decision to constitute a select committee without receiving the motion violated the Act.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision.
- A Clerk of a County Assembly facing removal is entitled to charges with particulars, adequate time to prepare, and the statutory procedure under the County Assembly Services Act; failure to comply breaches Articles 41, 47 and 236.
Court orders
#- 1.Certiorari to quash the decisions of the 1st Respondent taken on 24th October 2023 and 14th November 2023 to suspend the Ex-Parte Applicant and recommending revocation of her employment as Clerk
- 2.Prohibition against the Respondents acting on or enforcing the motion or hearing for purposes of revoking the Applicant's appointment based on the impugned decisions
- 3.Prohibition against the Respondents taking any further investigation or processes leading to revocation of the Applicant's appointment based on the impugned decisions
- 4.Costs of the suit awarded to the Ex-parte Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction over county assembly administrative decisions (Fair Administrative Action Act; Articles 41, 47, 236 of the Constitution; leave granted 17th November 2023)
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.
The letter of suspension dated 24th October, 2023 did not comply with section 23(1)(b) of the Act as it did not “forward the statement of the said charge or charges to the Clerk together with a brief statement of the allegations in support of the charges”.
In view of the foregoing, it is the finding of this court that the decision made by the Speaker to forward the report to the County Assembly to constitute a Select Committee without receiving the Motion from the Board was in violation of section 23(3) and (4) of the County Assembly Services Act.
An order of Certiorari to bring before this court and quash the decisions of the 1st Respondent, Elgeyo/Marakwet County Assembly Service Board, taken on 24th October, 2023 and 14th November, 2023 to suspend the Ex-Parte Applicant from service and recommending for the revocation of the Ex-parte Applicant's employment as the Clerk of the Elgeyo/Marakwet County Assembly.
4. Costs of the suit are awarded to the Ex-parte Applicant.
Issues in the judgment
#The Statutory Statement pleads the impugned decision date as 24th October 2014 while the body of the judgment and pleadings consistently refer to 24th October 2023.
Paragraph 54 states the 3rd Respondent forwarded the report to the 1st Respondent, which contradicts the parties' roles elsewhere; it should read the 2nd Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Elgeyo Marakwet County Assembly Service Board & 2 others; Kiptum (Exparte Applicant) (Judicial Review E004 of 2023) [2025] KEELRC 331 (KLR)", Case Analysis (2025). Judicial Review application, Notice of Motion dated 28th November 2023 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/331/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.