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ELRCPartially AllowedPetition dated 28th December 2023 (number not stated in judgment)

Mwangi & another v Speaker, County Assembly of Laikipia & another (Petition E019 of 2023) [2025] KEELRC 547 (KLR)

Employment and Labour Relations Court
27 February 2025
OMOnesmus N Makau
3,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed Laikipia County Assembly's creation of a Deputy Clerk office because the Board skipped a legally required HR consultant's advice.

What this practically means

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Executive summary

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The Petitioner petitioned the ELRC at Nyeri challenging the establishment and advertisement of the office of Deputy Clerk Administrative Services of the Laikipia County Assembly, contending that the 2nd Respondent created the office in contravention of the County Governments Act, the County Assembly Service Act and the Constitution (Articles 2(1), 10, 22, 23, 47 and 175(a)), and sought declarations plus orders quashing the establishment and advertisement. The Respondents, through the affidavit of the County Speaker, maintained that section 24 of the County Assembly Service Act empowered the Board to establish offices, that a 2019 consultant report supported a structural review, and that the recruitment was competitive and fair. A preliminary objection on jurisdiction and locus standi had earlier been dismissed on 19th July 2024. Framing two issues - whether the respondents violated the Constitution in creating the office and recruiting a holder, and whether the Petitioner was entitled to the orders sought - the court found that the impugned two-deputy-clerk structure was adopted without the advice of a reputable HR consultant mandated by section 24(4) of the County Assembly Service Act, rendering the decisions ultra vires and tainted with illegality. It further found violations of Article 10 national values and Article 232 public service values, including diversion of retirement-vacancy funds to finance the unlawfully created office. The court granted the declarations and substituted certiorari for the mislabelled mandamus, entering judgment for the Petitioner with no order as to costs given the public-interest nature of the suit.

Questions the Court framed

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

  1. 1.Whether the respondents violated the constitution by creating the said office and recruiting a holder thereof
  2. 2.Whether the Petitioners are entitled to the orders sought

Key legal issues

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01

Whether the establishment of the office of Deputy Clerk Administrative Services was lawful

Holding

The establishment was unlawful because the Board did not obtain advice from a reputable HR firm before reviewing the organisational structure as required by section 24(4) of the County Assembly Service Act

Reasoning

The 2019 consultant report recommended only one deputy clerk. The two-deputy-clerk structure (Annexure LN-4) was adopted without fresh advice from a reputable HR consultant. Section 24(4) requires such advice in mandatory terms. The breach rendered the decision ultra vires and tainted with illegality, warranting judicial review.

p. 5
02

Whether the petitioners pleaded and proved the alleged constitutional violations with sufficient precision

Holding

Yes; the petitioners clearly outlined the complaint, the provisions infringed and the manner of infringement, satisfying the Anarita Karimi Njeru standard

Reasoning

Applying the requirement that a petitioner must cite the constitutional provisions violated and the manner of violation, the court found the pleading of breach of the statutory procedure for organisational review sufficient, and held the breach amounted to violation of the national values in Article 10.

p. 7
03

Whether the choice of mandamus as the quashing remedy was fatal to the petition

Holding

No; the court treated the use of mandamus as a non-fatal mistake and substituted orders of certiorari

Reasoning

The court noted mandamus compels action rather than quashes decisions. Because the intended relief was clearly a quashing order, the court corrected the mislabelling and granted certiorari instead, entering judgment for the petitioners.

p. 7

Legal principles established

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  • The County Assembly Service Board must, in mandatory terms, appoint a reputable human resource firm to advise it before reviewing its organisational structure; failure to do so renders the resulting establishment of offices illegal
  • Judicial review of administrative actions lies where a decision is tainted with illegality, irrationality or procedural impropriety

Court orders

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  1. 1.A declaration that the decision by the 2nd Respondent to establish the position of the Deputy Clerk Administrative Service, Laikipia County Assembly is unconstitutional as made in contravention of the County Governments Act, the County Assembly Service Act and the Constitution
  2. 2.A declaration that the decision by the 2nd Respondent to advertise the position of the Deputy Clerk Administrative Service is unconstitutional as made in contravention of the County Governments Act, the County Assembly Service Act and the Constitution
  3. 3.An order of certiorari quashing the decision of the Respondents in the establishment of the office of the Deputy Clerk Administrative Services of the County Assembly of Laikipia
  4. 4.An order of certiorari quashing the decision of the Respondents to advertise the position of the Deputy Clerk Administrative Services of the County Assembly of Laikipia
  5. 5.No order as to costs

The bench

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

OM
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, Articles 22, 23 and 47 (petition for violation of constitutional and statutory rights, filed in the ELRC); original jurisdiction, no appeal below

Relief refused

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Order of mandamus to quash the impugned decisions (as prayed in prayers (c) and (d))

Mandamus compels action and is not the proper remedy for quashing; the court substituted certiorari, treating the mislabelling as a non-fatal mistake

p. 7

Costs of the petition

The suit is public interest litigation

p. 7

Costs

No order as to costs since the suit is in the nature of public litigation (each party to bear 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.

There is no evidence to prove that the respondents sought advice of a reputable HR Consultant before coming up with the organisational structure (Annexure LN-4) with two deputy clerks in the county assembly service.
p. 5Breach of section 24(4) County Assembly Service Act
In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
p. 6Thresholds for judicial review of administrative action
mandamus is not for quashing decisions but compelling action. As such, I treat the use of mandamus as a non- fatal mistake since the intended relief was a quashing order.
p. 7Choice of prerogative orders; curable defect in relief
No order as to costs since the suit is in the nature of public litigation.
p. 7Costs in public interest litigation
A declaration that the decision by the 2nd Respondent to establish the position of the Deputy Clerk Administrative Service, Laikipia County Assembly is unconstitutional to the extent that the decision was made in contravention of the guiding principles provided in the County Governments Act, the County Assembly Service Act and enshrined in Constitution of Kenya
p. 7Final orders - declaration of unconstitutionality

Issues in the judgment

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minor

The judgment does not state the petition number, the neutral citation, or the full names/descriptions of the Petitioner, 1st Respondent and 2nd Respondent; parties are referred to only as Petitioner, 1st Respondent and 2nd Respondent (the 2nd Respondent is inferable as the County Assembly/Board but never expressly named).

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, "Mwangi & another v Speaker, County Assembly of Laikipia & another (Petition E019 of 2023) [2025] KEELRC 547 (KLR)", Case Analysis (2025). Petition dated 28th December 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/547/eng@2025-02-27

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