Amina Rashid Masoud v Governor Lamu County, Speaker County Government Of Lamu, County Assembly of Lamu & Attorney General
Fair Process must be observed in the removal of a Member of a County Assembly
Amina Rashid Masoud v Governor of Lamu County & 3 others
Petition No 10 of 2006
High Court of Kenya at Malindi
SJ Chitembwe J
September 29, 2016
Reported by Phoebe Ida Ayaya
Jurisdiction-Jurisdiction of the High Court-jurisdiction of the High Court to inquire into the constitutionality of acts done by any person or state organ - whether High Court had jurisdiction to inquire into the acts of Parliament and the Executive
Statutes – interpretation of statutes – interpretation of different provisions of the County Governments Act – impact and meaning of the provisions – whether the provisions were unconstitutional
Civil practice and procedure - injunction- interlocutory injunction -application by petitioner seeking stay of the resolution of the Lamu County Assembly to remove her from office - whether or not the application passed the test for granting orders interlocutory injunction-applicable principles- whether the applicant established a prima facie case
Constitutional Law - Separation of Powers - doctrine of separation of powers-arms of government - relationship between the different arms of government –- whether the High Court had jurisdiction to issue an order of stay of the County Assembly’s decision pending the hearing and determination of proceedings
Constitutional Law - fundamental rights and freedoms - fair administrative action - whether the action of the National Assembly Speaker violated the provisions of the Constitution- whether the failure to comply with the provisions of Rules of natural justice by extension be construed to amount to a violation of the spirit of the Constitution- Fair Administrative Action Act section 5 ;Constitution of Kenya, 2010, articles 47,95,124(3) (b)
Constitutional Law – conservatory orders – stay of resolution of a county assembly- application seeking stay of the resolution of the Lamu County Assembly to remove her from office – whether the petitioner had established a prima facie case with a likelihood of success to warrant issuing of conservatory orders - whether or not conservatory orders could be granted and whether the application could be struck out for being omnibus – whether the application had merit
Devolution- County Government-County Executive Committee members-removal of County Executive Committee members-manner in which County Executive Committee members could be dismissed from office- whether the procedure for removal of a member of a County Executive Committee under section 40 fell short of a fair removal process-County Governments Act, No 17 of 2012, section 40(3.)
Words & Phrases-definition-Incompetence-Inability to do something successfully
Words & Phrases-definition- ineptitude - Lack of skill or ability
Words & Phrases-definition- Underperformance is derived from the verb to underperform that is defined as 'Perform less well than expected' whereas to perform - Carry out, accomplish, or fulfill an action, task, or function
The Petitioner was the Lamu County Executive Member for Physical Planning, Urban Development, Infrastructure and Water. The Governor of Lamu appointed her to that post in 2013. On April 5, 2016, the Lamu County Assembly initiated impeachment proceedings against her and the Assembly members passed the motion. That led to the filing of the petition and the Petitioner contemporaneously filed a notice of motion seeking stay of the resolution of the Lamu County Assembly to remove her from office and other injunctive orders. The Speaker of the Lamu County Assembly sent a notice to the Governor on April 6, 2016 indicating that there was a motion to remove the Petitioner from office. The notice cited three grounds namely incompetence; under performance & violation of the law and thus an application for an interlocutory injunction.
i. Whether the Court was usurping the jurisdiction of the County Assembly in their role in resolving county matters
ii. Whether or not the application passed the test for granting conservatory orders seeking stay of the resolution of the Lamu County Assembly to remove her from office
iii. Applicability of section 40 of the County Governments Act in regard to County Assemblies composed of few members via a vis many members in passing member resolutions
iv. Whether or not conservatory orders could be granted and whether the application could be struck out for being omnibus
Relevant provisions of the law
Constitution of Kenya, 2010
Article 73 and 75
Article 73. (1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; (own emphasis)
Article 75. (1) A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—
(b) ...; or
(c) demeaning the office the officer holds.
(2) A person who contravenes clause (1), or Article 76, 77 or 78 (2)—
(a) shall be subject to the applicable disciplinary procedure for the relevant office; and
b) may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office. (own emphasis)
(3) A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office
Article 176 (1)
There shall be a county government for each county, consisting of a county assembly and a county executive.
Article 179 (2)
Provides that the Executive Committee consists of the Governor, Deputy Governor and Executive Committee members.
Article 179 (6)
(6) Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.
Article 200 (1) and (2) (c)
(1) Parliament shall enact legislation providing for all matters necessary or convenient to give effect to this Chapter.
(2) In particular, provision may be made with respect to —
(c) the manner of election or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates;
14 (1) A County assembly -
(a) an Act of Parliament, or a law made under authority conferred by an Act of Parliament; or
(b) a law made by an assembly of a county government, or under authority conferred by such a law;
“public officer” means—
(a) any State officer; or
(b) any person, other than a State Officer, who holds a public office;
“State office” means any of the following offices—
(h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;
The Constitution requires that a holder of a public office to have integrity and competence.
County Governments Act
A “county executive committee” is defined under
'a county executive committee established in accordance with Article 176 of the Constitution'
a. may make standing orders consistent with the Constitution and this Act regulating the procedure of the County Assembly including, in particular, orders for the proper conduct of proceedings; and
b. subject to standing orders made under paragraph (a), may establish committees in such manner and for such general or special purposes as it considers fit, and regulate the procedure of any committee so established.
Section 30 (2)
(2)Subject to the Constitution, the governor shall—
(i) by a decision notified in the county Gazette, assign to every member of the county executive committee, responsibility to ensure the discharge of any function within the county and the provision of related services to the people;
Section 30(2) (i)
Each member of the county executive committee has an assigned duty. The Section further provides that: the governor shall-
(j) submit to the county assembly an annual report on the implementation status of the county policies and plans: -
(i) sign and cause to be published in the county Gazette, notice of all important formal
Section 31 (a)
The governor may, despite section 40, dismiss county executive committee member at any time, if the governor considers that it is appropriate or necessary to do so.
Section 40 (1)
Subject to subsection (2), the Governor may remove a member of the county executive committee from office on any of the following grounds-
b. abuse of office;
c. gross misconduct;
d. failure, without reasonable excuse, or written authority of the governor, to attend three consecutive meetings of the county executive committee;
e. physical or mental incapacity rendering the executive committee member incapable of performing the duties of that office; or
f. gross violation of the Constitution or any other law
Section 40 (2)
An Member of the County Assembly may move a motion for removal of a county executive member. It provides that: -
A member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the governor to dismiss county executive committee member on any of the grounds set out in subsection (1).
Section 110 (3)
Each county spatial plan shall be developed by the county executive committee and approved by the respective county assemblies in accordance with procedures approved by the respective County Assembly.
decisions made by the governor or by the county executive committee.
Standing Order 44 (3) (b) provides that: -
If the Speaker is of the opinion that any proposed Motion-
(b) is contrary to the Constitution, or an Act of Parliament or County Assembly, without expressly proposing appropriate amendment to the Constitution or the Act of Parliament of County Assembly;
The Speaker may direct either that, the Motion is inadmissible, or the notice of it cannot be given without such alteration as the Speaker may approve or that the motion be referred to the rejuvenate committee of the County Assemble, pursuant to Article 114(2) of the Constitution.
1. In the doctrine of separation of powers, the three arms of Government had an element of independence to which the Judiciary respected and showed deference to. That however did not shield them from the scrutiny of the judiciary as it was bestowed with the judicial authority as per article 159(1) of the Constitution of Kenya, 2010 and had the ultimate interpretative role of the Constitution and the law. The Courts had an interpretive role - including the last word in determining the constitutionality of all governmental actions.
2. The jurisdiction of the High Court to adjudicate on constitutional matters was wide and was now settled. The Court was endowed with the proper jurisdiction to scrutinize the County Assembly of Lamu in accordance with the Constitution of Kenya, 2010. What the County Assembly was conducting was an administrative function that was subject to the Court’s assessment in terms of compliance with the Constitution.
3. The case of Giella v Cassman Brown was the focal reference for the ingredients to be considered in applications for injunctions, namely -
i) whether the Applicant had established a prima facie case with a likelihood of success
ii) whether the Applicant stood to suffer irreparable harm: and if in doubt the Court was to consider
iii) on which side the balance of convenience lay.
4. The petition sought the determination that the process of removing the Petitioner from office violated the Constitution of Kenya, 2010. The law pertaining to removal of a member of a County Executive Committee was under sections 31 (a) and 40 (1) and 40 (2) of the County Governments Act. The process had its grounding upon article 200 (1) and (2) (c) of the Constitution of Kenya, 2010.
5. Under section 40 (2) of the County Governments Act, an MCA could move a motion for removal of a county executive member. It provided that a member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the governor to dismiss county executive committee member on any of the grounds set out in subsection (1).
6. Section 40(2) of the County Governments Act was the scenario that was facing the Petitioner. The motion for removal from office was presented to the Clerk by an MCA of the Lamu County Assembly and approved by the Speaker. It had three grounds namely: incompetence, under-performance and violation of the Constitution and other relevant laws. On the allegation of incompetence, the Petitioner banked on section 110 (3) of the County Governments Act to demonstrate that the particulars thereof which were failure to submit spatial plans to the Lamu County Assembly was not grounded in law.
7. Article 179 (2) of the Constitution of Kenya, 2010 provided that the Executive Committee consisted of the Governor, Deputy Governor and Executive Committee members.
8. It was clear from a reading of sections 2 and 110 (3) of the County Governments Act together with article 176 (1) of the Constitution that a member of the County Executive Committee was not the county executive committee and neither was it the sole onus of a County Executive Committee Member to formulate the county spatial plan alone.
9. There was therefore an element of picking on the Petitioner to shoulder the responsibility of the whole County Executive Committee yet it was not her duty to do so. Under section 110 (3) of County Governments Act, the County Assembly was expected to have had established the procedures for the preparation of the special plans by the Executive Committee. There was no evidence that such procedures were in place. Section 110 was specific on the County Special Plans. They were detailed documents depicting the social and economic development status of a County.
10. It was the Petitioner who was endowed with the responsibility of preparing the plans. However, the plans could not be prepared by one docket independently without the input of the other dockets. Such plans were to capture education, cultural, social and economic activities such as farming and fishing. That information was not contained in one docket. That was why section 110 (3) gave the responsibility to the entire Executive Committee. A consultant had been recruited to undertake the work.
11. It could be stated from the definitions that incompetence had some elements of underperformance in that the task, duty etc was not carried out successfully or as expected. The statutory word used was incompetence. The cardinal rule for construction of a statute; was a statute could be construed according to the intention expressed in the statute itself. The object of all interpretation of a written instrument was to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act was to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context. Given the fact that under performance was part of incompetence, the charge of under-performance was applicable. It could not be simply dismissed that the law did not provide it.
12. Section 30 (2) of the County Governments Act put the onus of reporting regularly to the County Assembly on the implementation status of the county policies and plans and for gazetting of the important formal decisions by the county executive committee to the Governor. The Act did not extend the onus to a member of the County Executive Committee. However, in exercise of its supervisory role, the County Assembly could call for information or a report to be submitted separately by a member of the County Executive Committee at any time.
13. The concern on gross violation of the Constitution of Kenya, 2010 through abuse of office by allocation of compensation to unmerited persons was challenged by paragraph 23 (ix) of the Petitioner's supporting affidavit which annexed affidavits of persons and list of beneficiaries said to have been wrongfully compensated. An indication that she may have been wrongfully accused hence the need to iron it out during the hearing of the petition. The foregoing in mind, the Speaker was out of line with the Constitution of Kenya, 2010 under article 47 on fair administrative action when Standing Order 44 (3) (b) as read together with Standing Order 62 (1) was taken into consideration. Standing Order 62 (1) required that a motion under section 40 of the County Governments Act was to be submitted to the Clerk and then to the Speaker for approval.
14. Standing Order 62 (2) required the member after the Speaker's approval to give a three-day notice calling for the dismissal of a member of the county executive committee by the Governor. Standing Order 62 (3) provided upon the expiration of the three days the motion to be placed on the Order Paper and be disposed of within three days.
15. The time granted to the Petitioner to state her case was in dispute. That hinted on infringement of right to fair hearing under article 50 (1) and fair administrative action under article 47 of the Constitution of Kenya, 2010. From the Hansard record, over one hour was spent on the request to have the matter adjourned to the following day.
16. The Speaker was supposed to be an independent arbiter and did not need the advice of the members while making decisions. Further, that was a Select Committee. The Chairperson of the Committee in consultation with her other four members were to decide on the request for adjournment and not the Speaker. Furthermore, the report of the Select Committee indicated that non-select committee members were part of the process and seven persons appointed into the Select Committee. Section 40 (3) (a) of the County Governments Act provided that after an MCA's motion was moved for the removal of a member of the County Executive Committee and was supported by at least one-third of the members of the county assembly then the county assembly was to appoint a select committee comprising five of its members to investigate the matter. All the above point out to procedural unfairness and undue process by a quasi-judicial tribunal to which the rules of natural justice automatically applied.
17. The provisions of section 40 (2) and 40 (3) was that it was effected fairly in Counties with a County Assembly composed of at least more than 30 members. Section 40 (2) required that the motion be supported by at least one third of the members of the County Assembly. There was a Select Committee of five people under section 40 (3) who were to investigate the matter. In Lamu County, there were only twenty members of the County Assembly. Ten elected and ten nominated. One third of those members was seven. That left thirteen members of the Assembly who were said not to be supporting the motion.
18. Ordinarily, the five members of the Select Committee ought to be amongst those who had not appended their signature in support of the motion. That again left only eight members who could be said to be seeing the report of the Select Committee for the first time when tabled in the Assembly. For a member of the Executive Assembly to survive the allegations, he/she required a large number of objective members who would interrogate the report for the first time. Where the entire Assembly was composed of few members, it was evident that almost every member was aware of the motion or petition for the removal of the County Executive Member and would have already formed an opinion on it by the time the Select Committee’s report was tabled for deliberation.
19. In the instant case, the Complainant forwarded the motion to the Clerk of the County Assembly on April 5, 2015. The Speaker forwarded the motion to the Governor on April 6, 2016. What was worrying was the fact that the motion was accompanied by a list of the members who were in support of the motion. The list showed that fourteen out of the twenty members were already in support of the motion. That was more than the minimum one third. It was in fact double the minimum on third threshold. It was not illegal to do so but that called in the fundamental right to be subjected to a fair and impartial process. When the members voted under section 40 (6), a simple majority carried the day.
20. Fourteen members in support of the motion were more than the simple majority of eleven members in the Lamu County Assembly. It could be argued that members were free to vote against the motion at the Assembly. Under Standing Order Number 62 of the Lamu County Assembly, any signature appended in support of the motion could be withdrawn. That sense of solidarity could be extended to the time of voting.
21. Section 40 (2) of the County Governments Act could easily be abused by County Assembly Members, the normal process was for the motion to be tabled and then the Assembly members agreed on who was in the Select Committee. Unfortunately, the seven members proposed by the movers of the motion were amongst those who appended their signature in support of the motion. By supporting the motion, what it meant that one supported the allegations being levelled against the member of the Executive Committee. All the members proposed in the motion were the same members who sat in the Select Committee.
22. Only two MCAs were not included as members of the Select Committee as per it’s sitting on Monday April 25, 2016. However, four other members were said to be in attendance. The Speaker also participated in the proceedings. Ordinarily the Speaker waited for the Select Committee’s report to be tabled by the Select Committee. There could be more than one Select committee at one given time and the Speaker did not need to attend their meetings. Indeed, the comments by the Speaker on the Governor and the Executive Committee Member being probed as per the Hansard report were quite appalling and derogatory.
23. Turning back to the provisions of sections 40 (2) and 40 (3), where the Assembly was composed of few members like the Lamu County Assembly, the fate of the executive Committee Member was sealed even before the proceedings began. It was tantamount to passing a judgement and then conducting proceedings to justify the judgement. The Select Committee and even the entire Assembly operated like a quasi Judicial Tribunal wherever conducting its business under sections 40 (2) and 40 (3) of the County Governments Act. Any quasi Judicial Tribunal was to observe the rule of law and the principles of fair hearing under article 50 of the Constitution, 2010. Fair hearing applied to both criminal and civil cases.
24. Article 50 was not confined to criminal cases only since the Constitution of Kenya, 2010 had other mechanisms of fair handling of civil matters. Section 40 (2) and (3) became problematic if the Governor who appointed his Executive Committee was satisfied with the work of his member who was targeted for removal. The Governor was in support of his Executive Committee member.
25. The County Executive Committee comprised of the Governor, Deputy Governor, members of the County Executive Committee who were appointed by the Governor. The members of the County Executive Committee assisted the Governor to carry out his mandate under the law. It was the Governor who assigned to every member of the County Executive Committee responsibility to ensure the discharge of any function in the County. That was the reason why the County Executive Committee members were individually and collectively accountable to the Governor in the exercise of their powers and performance of their duties and responsibilities. A County Executive Committee member was the Governor’s right hand in his/her respective office. Hence the Governor had to have confidence in the County Executive Committee member.
26. It became quite difficult for a member of the Executive Committee who was appointed by the Governor to be removed from office by the members of the County Assembly yet the Governor was satisfied by the work of that Executive Committee member. The Governor was rendered helpless as section 40 (6) (b) required the Governor to effect the resolution of the assembly and dismiss his Executive Committee member.
27. The process of removal of a member of the County Executive Committee from office differed from that of the president or his deputy but the terminology used was one and the same thing and was just a matter of semantics. The process could not be faulted for the sole reason that it used the term impeachment and not removal.
28. The principles upon which interlocutory injunctive orders were granted did not state that the prima facie case had to be watertight but one with a likelihood of success. A prima facie case had been established.
29. The second limb in determining whether or not to grant interlocutory injunctive orders was to establish whether or not there was irreparable harm that the Petitioner was to suffer if the report by the Select Committee and the subsequent resolution was implemented. However if the ball was to be kept rolling, the effect of its implementation would be the removal of the Petitioner from a state office position and the Petitioner could be barred from holding a public office.
30. The Petitioner was aiming for a life under public service. The implementation of the report and subsequent resolution would cause her to endure unwarranted irreparable harm in the event that the process of her removal from office was found to be wanting after hearing the petition.
31. Conservatory orders were aimed at maintaining the subject matter in situ by striking a delicate balance between the functioning of public bodies and public interest.
32. Conservatory orders bore a more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, were not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the Petitioner’s case for orders of stay. Conservatory orders, consequently, could be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
33. The Petitioner having demonstrated that she had a prima facie case with probability of success, there was the likelihood of suffering irreparable harm and most importantly in the interest of the public not to have the functioning of the County Executive Committee unduly interfered with, then a conservatory order ought to be granted. The County Assembly was to be objective and impartial while dealing with issues calling for the implementation of section 40 (2) and (b) of the County Governments Act. A quasi-judicial body ought to be impartial by nature. If the Complainant had already convinced fourteen of his colleagues including the Chairperson of the Select committee to support the motion, then the distinct lines of impartiality faded and open bias was revealed.
34. Under section 31 (a) of the County Governments Act the Governor had powers to relieve a member of the Executive Committee on his own volition. The section did not give any conditions to be complied with by the Governor as opposed to sections 40 (1) and 40 (2) where the Governor and the County Assembly were supposed to follow the conditions or qualifications stipulated under that section. Therefore even the absolute authority of the Governor under section 31 (a) of the County Governments Act had to be exercised in accordance with the law. It was not unqualified.
35. It was trite law that a Court of law had to be moved under the correct provisions of the law. A party, who moved the Court, had to cite the specific provision(s) of the law that clothed the Court with the jurisdiction invoked. It was improper for a party in its pleadings, to make omnibus applications, with ambiguous prayers, hoping that the Court would grant at least some.
36. Under article 199 of the Constitution of Kenya, 2010 county legislation did not take effect unless published in the Gazette. Legislation did not include Standing Orders as per the article 260 of the Constitution of Kenya, 2010.
37. The Gazette did not as it were constitute the notice or the law itself but rather the official announcement of its existence or coming into force. Such that the validity or otherwise of a law or notice was not resident in the Gazette but the persons or bodies tasked with the responsibility to make such laws or issue such notices in accordance with the law and the Constitution. The Gazette merely conferred a seal of authority or officialdom to existence of the notice or the law.
38. The standing orders of the Lamu County Assembly needed not be gazetted. They were not unconstitutional. All what was required under section 14 of the County Governments Act was for the standing orders to be in line with the Constitution. The standing orders were valid and lawful.
39. Given the manner in which the County Assembly conducted the process of the removal of the petitioner as a member of the Lamu County Government Executive Committee, the application established a prima facie case with probability of success. The Petitioner would suffer irreparable damage if the orders being sought were not granted. That was not tantamount to upholding private rights against public interest.
40. The Constitution, 2010 did safeguard private rights and such rights have to be protected by the Court. There was cold war between the Governor and the Speaker of the County assembly. Had the two sat together and deliberated on the problem, the motion could not have proceeded. The Governor had powers to transfer one Executive Committee Member from one department to the other. Members of the Assembly may be having problems dealing with the petitioner in relation to the departments such as issues to do with land and water.
41. The Petitioner was indeed in charge of a very wide docket. She could have been transferred to another docket, as her competence was not in doubt. Members of the County assembly understood that allocating resources to a department was one thing and availing those resources to the department was another. Implementing the projects was a tedious process that required patience and support of the members of the Assembly. The budgetary allocations had to been followed up with the disbursement of actual funds to carry out the activities.
Application dated April 27, 2016 merited and granted as prayed. Costs to follow the outcome of the main suit.