Requirements relating to the removal of members to County Public Service Boards from office

Mundia Njeru Geteria v Embu County Government & 3 others

Petition Number 116 of 2013

Industrial Court of Kenya at Nyeri

Abuodha Nelson, J

December 19, 2013

Reported by Beryl A Ikamari

Issues

1. Whether the appointment of the petitioner as the Chairperson of the Embu County Public Service Board was effective notwithstanding the fact that the appointment was not gazetted in the Kenya Gazette and there was no appointment letter issued.
2. Whether the removal of the petitioner from office by means of a letter rescinding his appointment and indicating that the rescission was in furtherance of a County Assembly Resolution, was a violation of constitutional and statutory provisions.
3. The nature of remedies, if any, that the petitioner would be entitled to.

Constitutional Law-County Government-County Public Service Boards-requirements relating to the appointment of members to County Public Service Boards-whether an appointment would be effective without the issuance of an appointment letter and the gazettement of the appointment-Constitution of Kenya, 2010; Chapter 6 & County Governments Act, No 17 of 2012; sections 58 & 67.

Constitutional Law-County Government-County Public Service Boards-requirements relating to the removal of members to County Public Service Boards from office-whether a letter rescinding an appointment and indicating the existence of a County Assembly resolution for the rescission, would suffice- Constitution of Kenya, 2010; article 151(1) & County Governments Act, No 17 of 2012; sections 58(5).

Held

1. In accordance with the terms of section 58(3) of the County Governments Act, No 17 of 2012, the petitioner met the requirements for appointment as the Chairperson of the County Public Service Board. Upon his appointment, the petitioner was to hold office for a non-renewable term of 6 years.
2. Under section 67 of the County Governments Act, No 17 of 2012, appointments to the county public service would not be valid unless they were evidenced in writing. The import of section 67 was that the appointment would be evidenced in writing and that an appointment could be contained in a letter of appointment or evidenced from a document or series of documents.
3. The petitioner's appointment was evidenced in writing by the document titled, "Oath of office of the Chairman of the Embu County Service Board" which was signed by the Governor, the County Secretary and the petitioner.
4. It was the Embu County Government's duty to issue the petitioner with a letter of appointment and it could not argue that the petitioner's appointment was incomplete for want of a letter of appointment or gazettement.
5. A Gazette notice would not constitute the notice or the law itself but it would be the official announcement of the existence of the law or notice or the coming into effect of the law or notice. Therefore, the validity of a notice or law would not reside in the Gazette but in the persons or bodies tasked with the responsibility to make such laws or notices in accordance with the law.
6. Pertaining to the removal of the petitioner from office the requirements of section 58(5) of the County Governments Act, No 17 of 2012, were that such removal would be based on grounds set out for the removal of members of a constitutional commission under article 251(1) of the Constitution and be via a vote of not less than 75% of all members of the County Assembly.
7. Article 251(1)  of the Constitution of Kenya 2010, provided that a member of a commission, except an ex-officio member, or the holder of an independent office, could be removed from office only for-

1. Serious violations of the Constitution or any other law;
2. Gross misconduct, in the performance of an office holder's functions or otherwise;
3. Physical or mental incapacity to perform the functions of the office
4. Incompetence; or,
5. Bankruptcy.

8. There was a failure to demonstrate that the petitioner's removal from office was related to the grounds provided for in law and that there was a decision for removal passed by 75% of the members of the County Assembly. The removal via a letter rescinding the appointment was not in compliance with the prescribed procedure.
9. It would be appropriate to issue the order of certiorari to quash the decision to rescind the petitioner's appointment and to also grant an injunction to restrain the removal of the petitioner from office by the respondents.

Petition allowed.

An award by the Land Disputes Tribunal must be rendered by a properly constituted tribunal

R v Chairman Kandara District Land Disputes Tribunal & 3 others

ELC in Nyeri

Judicial Review 57 of 2011

A Ombwayo.J

August 8, 2013

Reported by Andrew Halonyere & Cynthia Liavule

Issue

1. Whether the Land Disputes Tribunal established under section 3 of the repealed Land Disputes Tribunal Act No.18 of 1990 had jurisdiction to entertain a dispute on breach of contract. 
2. Whether an award rendered by an improperly constituted  was illegal under the repealed Land Disputes Tribunal Act No.18 of 1990

Jurisdiction-Land Disputes Tribunal-whether the tribunal had jurisdiction to deal with a claim based on breach of contract- Land Disputes Tribunal Act No.18 of 1990 (now repealed)sections 3,4

Statutes-interpretation of statutes- whether an award rendered by an improperly constituted tribunal of the repealed Land Disputes Tribunal Act No.18 of 1990 was illegal- Repealed Land Disputes Tribunal Act No.18 of 1990, section 4

Held

1. Section 3 of the repealed Land Disputes Tribunal Act No.18 of 1990 limited the jurisdiction of the tribunal to the division of, or the determination of boundaries to, land, including land held in common; a claim to occupy or work land; or trespass to land. A claim of breach of contract was not contemplated in the said section and therefore the tribunal had no power to deal with a claim based on contract under the said section. 
2. Any attempt by the tribunal to deal with a claim of breach of contract would be ultra vires and any decision made by the tribunal on the said claim would be a nullity. The court had jurisdiction under the Law Reform Act Cap 26 sections 8 and 9 to issue orders of certiorari to quash nullities.
3. The tribunal was not properly constituted when eight members sat and heard the dispute contrary to the provisions of section 4 of the Land Disputes Tribunals Act. The fact that more than five members sat to determine the dispute and one of the members did not sign the award made the same illegal, null and void abinitio.

Application allowed. Proceedings and award by Land Dispute Tribunal quashed