Mwangi & another v County Assembly Of Laikipia & another (Petition E014 of 2023) [2025] KEELRC 579 (KLR)
The bottom line
#Laikipia's County Assembly cannot borrow staff from the Governor's office — an executive officer illegally appointed acting Clerk must repay public funds, and officials who approved the payments are personally liable.
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 petition is overtaken by events and rendered moot by the judgment delivered by this court on 8th March 2024 in Petition E012 of 2023
- 2.Whether the secondment of the acting clerk was unlawful and violated the Constitution
- 3.Whether the Respondents should return the monies paid to the acting clerk and whether the reliefs sought are merited
Key legal issues
#Mootness of the petition
The petition is largely overtaken by events following the 8th March 2024 judgment in Petition E012 of 2023, save for prayers (c), (d) and (e)
The constitutionality of seconding a Chief Officer to act as Clerk had already been determined in Petition E012 of 2023, where the court quashed the secondment. However, no evidence was adduced that that judgment had been complied with, so the prayer that the Deputy Clerk act remained live, as did the liability prayer.
Whether the Deputy Clerk should act as Clerk
Prayer (c) granted; under section 21 of the County Assembly Service Act the Deputy Clerk ought to exercise the functions of the Clerk in the absence of the substantive Clerk
The court found no evidence that the earlier judgment reinstating the substantive clerk had been complied with. At all material times there was a Deputy Clerk in office who, under section 21 of the County Assembly Service Act, is the proper person to act when the substantive Clerk is absent or unable to discharge his mandate.
Liability for remuneration paid to the acting clerk
Respondents held jointly and severally liable for funds paid to or obtained by the illegally appointed acting clerk
Article 226(5) of the Constitution renders a person who directs or approves unlawful use of public funds liable to make good the loss. Since the court had already found the Respondents' actions unconstitutional, any loss occasioned must be borne by them. Their claim that the acting clerk drew only his original salary was unsupported by evidence.
Legal principles established
#- Secondment of a Chief Officer from the county executive to act as Clerk of the County Assembly is ultra vires, illegal, irrational and unconstitutional as a breach of separation of powers; the Deputy Clerk is the correct person to act under section 21 of the County Assembly Service Act
- Under Article 226(5) of the Constitution, a person who directs or approves the use of public funds contrary to law is liable for any loss arising from that use
- A party alleging a fact bears the burden of proving it
Court orders
#- 1.A Declaration that the Deputy Clerk of the County Assembly of Laikipia shall assume the duties and responsibilities of the Clerk in an acting capacity for the duration and until the appointment of a substantive clerk
- 2.A Declaration that the Respondents are held jointly and severally liable for any and all funds paid to the illegally appointed acting clerk as his remuneration, or otherwise obtained by him in his illegally assumed role as acting Clerk
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya (employment and labour relations jurisdiction of the ELRC)
Relief refused
#Declaration that the decision to appoint a stranger in an acting capacity as Clerk was unconstitutional; and judicial review by way of mandamus to quash that decision
The judgment in Petition E012 of 2023 quashed the secondment and appointment, rendering these prayers overtaken by events
Costs of the petition
Suit treated as public interest litigation; each party to bear own costs
Costs
Each party to bear own costs (public litigation suit)
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.
It follows that the secondment of a chief oficer from the County executive to act as the Clerk of the County Assembly was not only ultra vires but also uncalled for, illegal, irrational and outrightly unconstitutional.
I grant prayer (c) as prayed since at all material times to this case there was a Deputy Clerk in ofice, who under section 21 of the County Assembly Service Act ought to exercise all the functions, duties and powers of the Clerk in the absence of the substantive Clerk.
Article 226(5) of the Constitution requires that he who approves the use of public funds contrary to law is liable for the loss arising from that action.
Since the suit is in the nature of public litigation suit, I direct each party to bear own costs.
Issues in the judgment
#The supporting affidavit is dated 6th November 2023 while the petition it supports is dated 6th December 2023
The court's conclusion states prayers (c) and (d) were granted, while the earlier analysis says the petition survives as to prayer (c), (d) and (e)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & another v County Assembly Of Laikipia & another (Petition E014 of 2023) [2025] KEELRC 579 (KLR)", Case Analysis (2025). Petition E019 of 2023 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/579/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.