Gurcha v Speaker - County Assembly of Isiolo & another (Employment and Labour Relations Constitutional Petition E010 of 2025) [2025] KEELRC 1925 (KLR)
The bottom line
#A Kenyan court ruled the Isiolo County Assembly Speaker couldn't unilaterally send the Clerk on compulsory leave — only the Board can suspend the Clerk, following proper 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 conservatory orders should be issued as prayed by the petitioner.
- 2.Whether the interim order granted on 19th June 2025 should be reviewed and/or varied.
Key legal issues
#Whether the compulsory leave imposed by the 1st respondent was lawful
The compulsory leave letter was a nullity, imposed without legal mandate since CASA does not provide for compulsory leave and no employer regulations were made
CASA provides only for suspension or removal of the Clerk under section 22, not compulsory leave pending investigations. The employer had not made regulations under section 27 read with section 45 to guide disciplinary powers, and no contract provision was shown permitting compulsory leave. Further, section 22 vests the power to suspend in the Board alone, not an individual member. The Speaker acted alone without Board resolution, rendering the letter ultra vires and void under Article 2(4) of the Constitution.
Whether conservatory orders should issue
Yes — the petitioner established a prima facie case with good chances of success, public interest favoured granting the orders, and constitutional values would be upheld
Applying the Munya test, the court found the impugned letter tainted with illegality, so the petitioner's case was arguable and could be rendered nugatory. Public interest favoured suspending the illegal letter since the Clerk is central to Assembly business and his employment should be managed according to law, not individual whim. Granting the orders upheld the rights to fair labour practices and fair administrative action.
Whether the interim order of 19th June 2025 should be reviewed
No — the respondents' review application was overtaken by events as the interim order lapsed upon determination of the petitioner's motions
The interim order was expressly to last only until determination of the petitioner's motions. Varying it as proposed would have kept interim orders alive after that determination, which was unnecessary since the court was now issuing conservatory orders pending the petition. The review application was therefore rendered otiose and was marked as overtaken by events.
Whether the petition was sub judice given Nairobi ELRC Petition E119 of 2025
No — the petitioner had withdrawn the earlier petition to pursue the instant petition
The respondents argued the petition offended section 6 of the Civil Procedure Act because a similar suit was pending in Nairobi. The court noted the material on record showed the petitioner withdrew Nairobi ELRC Petition No. E119 of 2025 before filing this petition, so there was no subsisting suit and no sub judice bar to the present proceedings.
Legal principles established
#- Conservatory orders are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes, not on interlocutory-injunction tests
- A prima facie case in civil matters is one in which a right has apparently been infringed so as to call for an explanation from the opposite party
- An employer need not accord a hearing before suspension where no contract, regulation or statute requires it
Court orders
#- 1.An order temporarily suspending the Respondent's decision to place the Petitioner on compulsory leave as communicated in the 1st Respondent's letter dated 16th June 2025, pending the hearing and determination of the Petition
- 2.An order restraining the Respondents, their agents, assigns, representatives or any other person acting under their authority from ejecting, blocking, denying access into the office or otherwise impeding the Petitioner from occupying or discharging the functions of the Office of Clerk-Isiolo County, pending the hearing and determination of the Petition
- 3.The respondents' Notice of Motion dated 24 June 2025 is overtaken by events
- 4.Costs of the three applications to the petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Employment and Labour Relations Court jurisdiction under Article 162(2)); County Assembly Services Act
Relief refused
#Respondents' application for review of the interim order of 19th June 2025 to allow the Deputy Clerk to act as Clerk
Rendered otiose by the delivery of the ruling since the interim order was only to last until determination of the petitioner's motions
Costs
Costs of the three applications to the petitioner.
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.
An order be and is hereby granted, temporarily suspending the Respondent’s decision to place the Petitioner//Applicant on compulsory leave, as communicated in the 1st Respondent's letter dated 16th June 2025, pending the hearing and determination of the Petition herein.
An order be and is hereby granted, restraining the Respondents, their agents, their assigns, representatives or any other person acting under the Respondents authority from ejecting, blocking, denying access into the ofice and/or otherwise impeding the Petitioner/Applicant from occupying or discharging the functions of the Ofice of Clerk-Isiolo County Pending the hearing and determination of the Petition herein.
Costs of the three applications to the petitioner.
Until that happens, the Court finds that the public interest tilts in favour of suspending the impugned Compulsory leave letter and allowing the petitioner back to his ofice pending the hearing of his suit.
On the face value, the letter was a nullity and automatically void on the basis of the said illegality.
The board may suspend or remove from ofice, the Clerk for –
Issues in the judgment
#Judgment inconsistently refers to the impugned letter as dated 16th June 2023 in one passage and 16th June 2025 elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gurcha v Speaker - County Assembly of Isiolo & another (Employment and Labour Relations Constitutional Petition E010 of 2025) [2025] KEELRC 1925 (KLR)", Case Analysis (2025). Petition (Isiolo County Assembly) — Notice of Motion dated 17th June 2025, 18th June 2025 and 24th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1925/eng@2025-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.