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Nkaduda v County Assembly of Tana River & 4 others (Constitutional Petition 006 of 2021) [2022] KEELRC 1605 (KLR) (29 July 2022) (Judgment)
Neutral citation:
[2022] KEELRC 1605 (KLR)
Republic of Kenya
Constitutional Petition 006 of 2021
B.O Manani, J
July 29, 2022
In The Matter Of Articles 2(1), 3(1), 10, 19, 20, 22, 23, 25 (c), 27, 28, 47, 48, 50, 159, 165, 196 And 236 Of The Constitution Of Kenya And In The Matter Of Alleged Contravention Of The Constitution Of Kenya AndIn The Matter Of Violation Of The Right To Fair Hearing, Dignity And Protection From Discrimination And Security Of Persons And In The Matter Of Section 11 Of The County Governments Act, 2012AndIn The Matter Of Standing Order Nos 69 And 75 Of The Tana River County Assembly Standing Orders And In The Matter Of A Resolusion To Impeach The Speaker Of Tana River County, Honourable Michael Justine Nkaduda And In The Matter Of The County Assembly Of Tana River And In The Matter Of The Fair Administrative Actions Act, 2015
Between
Michael Justine Nkaduda
Petitioner
and
County Assembly of Tana River
1st Respondent
Clerk, The County Assembly of Tana River
2nd Respondent
Mohamed Buya Yusa
3rd Respondent
Galole Saddam Hussein
4th Respondent
Abdi Ergamso Gobu
5th Respondent
Judgment
1.This is a petition challenging the decision of the County Assembly of Tana River, the 1st Respondent, to impeach its County Speaker, the Petitioner herein, from office. The Petitioner sought to challenge the decision on the grounds that it was arrived at through a process that was flawed, in contravention of the applicable law and violation of his rights.
2.Broadly, the general intent of the case is to implore the court to declare the process as null and void. In addition, and as the Amended Petition shows, the Petitioner seeks for other ancillary relies such as orders for compensation for infringement of his constitutional rights.
3.Needless to say that the petition is opposed by the Respondents who, in their view, believe that they processed the Petitioner’s removal in a manner that was not only lawful but also just and equitable.
Facts Surrounding the Dispute
4.According to the Amended Petition, the Petitioner was until his removal from office, the County Speaker of the 1st Respondent. That on 21st April 2021, he was forced out of his office by some members of the 1st Respondent after they were incited to do so by the 5th Respondent. That in the process of his ejection, the Petitioner was not even allowed to collect his personal belongings including his medicine for managing his high blood pressure and diabetic conditions.
5.In the Petitioner’s view, this action by the members of the 1st Respondent against him was not only uncivil but also inhuman. It violated the Petitioner’s rights to human dignity, fair administrative action and exposed him to untold suffering resulting in his hospitalization.
6.The Petitioner contends that the Respondents’ activities of 21st April 2021 were orchestrated by their singular desire to set in motion the process of unlawfully ending the Petitioner’s tenure as Speaker of the County Assembly of Tana River County. According to the Petitioner, he later learned that the 3rd Respondent had in fact drafted a motion for the Petitioner’s impeachment. That this motion was forwarded to the 2nd Respondent on the same date it was prepared that is to say 21st April 2021.
7.That the motion was apparently hurriedly approved by the 2nd and 4th Respondents and tabled before the House on the afternoon of 21st April 2021. That the House went ahead to approve it for further processing. That all this was done without the Petitioner first being notified of the motion in contravention of the law and the Petitioner’s right to be heard.
8.The Petitioner contends that on 30th April 2021, he received an email from the 1st Respondent inviting him to appear before an ad-hoc select committee. That this committee had apparently been constituted to investigate and authenticate the grounds upon which it was proposed that the Petitioner be removed from the office of Speaker of the 1st Respondent.
9.That attached to the email were a couple of other communications to wit the following: a Notice of Motion document dated 21st April 2021; a Notice of Hearing of the Speaker’s Removal dated 29th April 2021; and the Hansard Report of 28th April 2021. According to the Petitioner, the Notice of Motion aforesaid had allegedly been approved by 2nd and 4th Respondents on 21st April 2021.
10.It is the Petitioner’s case that contrary to the law, the Notice of Motion delivered to him by email on 30th April 2021 did not provide particulars of the accusations against him. It only had generalized grounds of the accusations.
11.Further, the Petitioner contends that the said Notice of Motion only bore the signature of the 3rd Respondent. Yet, the law requires that such motion be supported by at least one third (1/3) of the members of the County Assembly who must all signify their support for the motion by appending their signatures on it.
12.The Petitioner also contends that the ad-hoc select committee that investigated his matter was not properly constituted. According to the 1st Respondent’s Standing Orders (SOs), such committee must have at least one third of the members of the 1st Respondent in order for it to be properly set up. Yet, the committee that investigated him comprised of seven (7) out of the twenty (23) members of the 1st Respondent.
13.From the record, the ad-hoc select committee invited the Petitioner to attend its investigative session scheduled for 3rd May 2021 at 10.00 am. On that day, the Petitioner indicates that he was unable to attend the ad-hoc committee’s investigative session as he was unwell. Instead, he asked his lawyers to appear and notify the committee of his indisposition and the fact that between 30th April 2021 when the invitation was sent out and 3rd May 2021 when the session was to be held was a weekend. Therefore, the notice did not afford him sufficient time to prepare for the session. Apparently, the Petitioner had also sent an email to the committee on Saturday, 1st May 2021 communicating the same position.
14.The Petitioner indicates that the lawyers attended before the ad-hoc committee on 3rd May 2021 and sought to adjourn the session. However, the request was declined. According to the Petitioner, he was told that the reason why the request to adjourn the committee session was declined was that any such move would jeopardize the timelines given to the committee to finalize and hand over its report on the matter under Standing Order (SO) 69(8) of the 1st Respondent’s SOs.
15.The ad-hoc committee went on to hold its session as scheduled and apparently came up with a report on the same day. On the very same 3rd May 2021 at 3.56 pm (the email shows 3.57 pm) after the ad-hoc committee’s session, the 2nd Respondent sent out an invitation to the Petitioner to attend the full house of the 1st Respondent on 4th May 2021 to respond to the allegations against him on the floor of the House before the report of the ad-hoc committee could be debated. The session of the full house was scheduled for 9.30 am on 4th May 2021.
16.From what I can gather from the Respondents’ case, the full house session of the 1st Respondent set for 4th May 2021 proceeded as scheduled. From the Respondents’ documents, the ad-hoc committee’s report was presented to the 2nd Respondent for approval on the morning of 4th May 2021. The 2nd Respondent is then shown as having granted his approval on the same date just in time for the full house session by the 1st Respondent.
17.Going by the record, this process of presenting the report to the 2nd Respondent for approval and the 2nd Respondent granting his approval to it must have happened between 8.00 am and 9.30 am on the material date (4th May 2021). The Order Paper listing the report for debate must also have been prepared between 8.00 am and 9.30 am on the same day that the report was receiving approval by the 2nd Respondent (4th May 2021).
18.From the Amended Petition, it would appear that the Petitioner had in the meantime resolved to instruct his lawyers to move to court to try and stall the impeachment process. From the record, this Petition was first filed before the High Court sitting at Garsen on 27th April 2021 as E002 of 2021.
19.From the record, the matter was later that day forwarded to the High Court sitting at Malindi. On 28th April 2021, the Deputy Registrar, High Court, Malindi dispatched the file to the Employment and Labour Relations Court (ELRC), Mombasa as the High Court Judge, Malindi had directed that the cause, being premised on a dispute arising from an employment relation, ought to be handled by the ELRC.
20.As the record shows, on 28th April 2021, the ELRC certified the application for conservatory orders in the matter as urgent and set it down for hearing on 4th May 2021. Meanwhile, the court ordered the Petitioner to cause service of the Petition and Notice of Motion application upon the Respondents within two (2) days of the 28th of April 2021.
21.According to the affidavit of service dated 3rd May 2021, the pleadings in the cause together with a Hearing Notice for 4th May 2021 were delivered to the premises of the 1st Respondent on 30th April 2021 and received by one Mohamed Drogba on behalf of all the Respondents. Indeed, all the Respondents entered appearance in the cause on 4th May 2021 (the court receipt shows the Memorandum of Appearance was paid for on 4th May 2021 even though the document was stamped on 5th May 2021), an indication that the Respondents had been served with the court’s processes some date earlier than 4th May 2021. As the record shows counsel appeared on behalf of the Respondents on 4th May 2021.
22.On 4th May 2021, the Petitioner avers that they recorded a consent permitting the Petitioner to amend his Petition and also forbidding the Respondents from concluding the impeachment process against the Petitioner unless conducted within the parameters of the law. This position is self- evident from the court record.
23.It would appear that unbeknown to the Petitioner, as the parties were holding the court session on 4th May 2021, the 1st Respondent was simultaneously processing the impeachment proceedings against him. Consequently, by the time the consent order was delivered to the Respondents, the 1st Respondent had already passed a resolution adopting the report of the ad-hoc committee to impeach the Petitioner.
24.The Petitioner’s case is that the 1st Respondent’s resolution of 4th May 2021 was contemptuous of the consent order issued by the court on the same date. Further, the resolution infringed on the Petitioner’s rights to a fair hearing and fair administrative action as protected under both the Constitution and the Fair Administrative Actions Act.
25.On their part, the Respondents maintain that their action against the Petitioner was justified. First, the Respondents assert that there were valid grounds to justify the impeachment of the Petitioner. These grounds were initially indicated to include: gross misconduct; incompetence; and abuse of office. However, after the ad hoc committee’s investigations, they came down to incompetence and gross misconduct as can be seen from the report by the ad hoc committee.
26.According to the Respondents, a Notice of Motion was validly initiated by the 3rd Respondent to remove the Petitioner on the aforesaid grounds. The motion received support of at least eighteen (18) members of the 1st Respondent’s twenty -three (23) members. Therefore, it met the statutory threshold that requires such motions to be supported by at least one third (1/3) of the members of the County Assembly where the targeted Speaker works.
27.That on receipt of the Notice Motion on 21st April 2021, the 2nd Respondent after being satisfied that it met the statutory threshold, forwarded it to the 1st Respondent for further processing. That the acting Speaker of the 1st Respondent approved the Motion and placed it before the 1st Respondent’s House on 28th April 2021 for further processing.
28.That on the day the Motion came on the floor of the house (28th April 2021), the chair of the Selection Committee one Ibrahim Salah Adonow, moved a motion for the appointment of an ad-hoc select committee to investigate the accusations against the Petitioner. That this was in compliance with the County Governments Act (CGA) and the 1st Respondent’s SOs.
29.That the SOs require that the ad-hoc select committee comprises at least one third (1/3) of the 1st Respondent’s twenty -three (23) members. That as a result, the chair of the Selection Committee tabled names of seven (7) members of the 1st Respondent before the 1st Respondent House for approval as members of the said committee. These names were approved by the House.
30.That SOs require that the ad-hoc select committee so appointed investigates the matter for which it has been set up and prepares and files its report with the 1st Respondent within ten (10) days. That in compliance with these legal requirements, the ad-hoc committee commenced its sessions immediately upon appointment with a view to meeting the statutory timelines aforesaid.
31.That on 29th April 2021, the committee issued the Petitioner with an invitation to appear before it on 3rd May 2021. That the invitation was sent to the Petitioner on 30th April 2021 through email around 3.57 pm. The email also forwarded to the Petitioner copies of: the Notice of Motion and the Hansard report for 28th April 2021. The Respondents contend that the particulars of the charges against the Petitioner were set out in the Hansard.
32.That the ad-hoc committee convened on 3rd May 2021 as programmed when the Petitioner’s Advocates tried to adjourn the session. That the request to adjourn for seven (7) days could not be granted as it would have taken the committee’s work to a date that would make it impossible for it to meet its statutory timelines.
33.That although the Petitioner argues that the committee was improperly constituted, his lawyers did not take up this objection on 3rd May 2021 when they appeared before it. Therefore, the objection is a mere afterthought.
34.That the 1st Respondent traditionally convenes its sessions on Tuesdays and Wednesdays. Therefore, the committee had to table its report either on 3rd May 2021 or 4th May 2021 in order for the House to convene on the following respective dates, that is to say, 4th May 2021 or 5th May 2021.
35.That if the Petitioner’s request to adjourn for the duration he suggested would have been granted, it would have taken the committee to around 7th May 2021 which date fell outside the ten (10) days within which the committee was required to have concluded its business on the issue. That this would have nullified the entire exercise and consequently resulted in wastage of public resources.
36.That the Petitioner’s lawyers were advised that an adjournment could only be permitted if it would not unduly prejudice the timelines that the committee was working within. That the lawyers were asked to suggest dates with this in mind but declined to do so and hence the decision by the committee to decline the request to adjourn.
37.The Respondents also aver that the Petitioner’s lawyers’ attempt to have the matter moved forward on the ground that the Petitioner had not been supplied with particulars of the charges against him was also declined. This was because the Hansard report for the proceedings of the House on 28th April 2021 which had been sent to the Petitioner contained particulars of the accusations against him.
38.It is the Respondents’ case that the Petitioner had the opportunity to appear before the select ad-hoc committee but failed to. As a result, the committee processed the matter in terms of the law and filed its report with the 2nd Respondent who after approving it, caused to be prepared an Order Paper for 4th May 2014 when the recommendations of the ad-hoc committee were tabled before the full house of the 1st Respondent.
39.It is the Respondents’ case that the Petitioner ignored calls to appear before the full house of the 1st Respondent to answer to the allegations against him before the report of the ad hoc committee was debated. Despite this failure to appear, the 1st Respondent considered and approved the ad-hoc committee’s report. Thus, the Petitioner was thereby lawfully impeached.
Issues for Determination
40.The parties did not frame issues for determination at the pre-trial stage. However, they did so in their final submissions.
41.In the Petitioner’s view, the following are the issues for determination: -a.Whether the 2nd Respondent has authority to swear the Replying Affidavit and appear on behalf of the 3rd, 4th and 5th Respondents.b.Whether the impeachment process undertaken by the 1st Respondent was lawful, procedural and fair.c.The constitutionality or otherwise of the 1st Respondent’s actions in purporting to impeach the Petitioner.d.What reliefs, if any, are available to the Petitioner?
42.On their part, the Respondents also framed issues for determination in their written submission. In large part, they mirror those of the Petitioner save for the following: -a.Whether the prayers sought in the Petitioner’s submissions dated 14th July 2022 can be issued.b.Whether the Respondents in undertaking the impeachment process acted in contempt of the Court order dated 4th May 2021.c.Whether the reliefs sought by the Petitioner run against the letter and spirit of the separation of power doctrine.
Analysis and Findings
43.After some back and forth, the parties agreed to have the Petition disposed of on its merits. It was further agreed that the parties give oral evidence in addition to the affidavit evidence that was already on record. The parties have also filed written submissions which I have considered in this decision.
44.I will begin examining this matter from the point at which the process of impeachment was triggered. This was through the events that took place on 21st April 2021. Because of the number of questions that have to be answered, I will undertake the exercise under several subheadings. Importantly, as I answer the several proposed questions, I will also be reacting to the issues as framed by the parties even though sometimes indirectly.
45.However, just before I examine the first question of authority to the 2nd Respondent to plead on behalf of the other Respondents, I note that counsel for the Respondent has alluded to the concept of separation of powers in the list of issues in her final submissions. It is not clear to me in what context this matter is taken up by counsel. It was neither pleaded nor addressed during the oral hearing of the Petition.
46.I note perhaps that counsel may have alluded to the issue based on the observations she came across on the subject in the case of Ameja Zelemoi v County Assembly of Baringo Speaker of the County Assembly of Baringo & another [2020] eKLR. However, without contextualizing the matter, I cannot make any pronouncements on it particularly so that the issue was not the subject of the trial.
47.This matter appears not to have its basis in the pleadings filed by the Petitioner. Therefore, it will be improper for the court to be invited on the basis of submissions and oral evidence to pronounce itself on it.
48.Importantly, a perusal of the pleadings gives the impression that Respondents numbers two, three, four and five were all sued because of activities relating to execution of their official mandate as either members or officials of the 1st Respondent. In the premises, it is appropriate in my view for the 2nd Respondent to plead on their behalf.
49.The Petitioner’s case is that he was forcibly ejected from his office on 21st April 2021. Besides, making this assertion in the Amended Petition, the Petitioner actually alludes to it at paragraph 10 (l) of his supplementary affidavit dated 15th June 2021. It should be noted that this affidavit was adopted by the Petitioner as part of his evidence when he testified under oath in support of his case.
50.At paragraph 5 of their defense, the Respondents deny that they forcibly ejected the Petitioner from his office as he asserts. However, they did not address this issue in the replying affidavit adopted by the 2nd Respondent as part of the defense evidence. And neither did the 2nd Respondent address the matter during his oral testimony nor file a supplementary affidavit to address it.
51.That the Petitioner ceased being physically in office from 21st April 2021 finds support in the evidence on record. First, this assertion is supported by the Petitioner’s own affidavit and oral evidence alluded to above. Second, the defense evidence provides corroboration of the Petitioner’s claim. For instance, after 21st April 2021, the only methods of communication that the Respondents say they were using to reach the Petitioner were through emails and allegedly by phone calls. If indeed the Petitioner was still within the precincts of the 1st Respondent between 21st April 2021 and 4th May 2021, nothing would have been easier than for the Respondents to deliver their processes to him physically.
52.In the absence of evidence by the Respondents to rebut the Petitioner’s evidence that he was physically ejected from his office and thereafter kept away from the precincts of the 1st Respondent, I hold that the Petitioner’s position on this issue reflects the factual position on the matter.
53.The law regulating the removal of a County Speaker from office is set out under section 11 of the CGA. Nothing under this provision sanctions the physical ejection of a sitting Speaker even as impeachment proceedings commence. Further, article 236 of the Constitution of Kenya 2010 and section 4 of the Fair Administrative Action Act frown at such arbitrary action against a public officer.
54.To the extent that the Respondents subjected the Petitioner to this form of arbitrary action on the morning of 21st April 2021 and even declined to allow him time to collect his medicine and other personal effects, I find that they handled the Petitioner in a manner that was not only arbitrary but also in violation of his rights to due process, fair administrative action and human dignity.
55.Section 11 (2) of the CGA provides for the grounds for the removal of a sitting Speaker of a County Assembly. These include: gross misconduct; incompetence; and gross violation of the Constitution and the law. Some of the above grounds are what allegedly informed the Respondents’ decision against the Petitioner.
56.Where it is desired to remove a Speaker from office on any of the grounds set out under section 11(2) of the CGA, section 11(3) of the Act requires that a notice of such intention be issued to the Clerk of the County Assembly. This notice of intention to remove the Speaker must be: given in writing to the said Clerk; signed by at least one third (1/3) of all the members of the County Assembly; and state the grounds for the proposed removal as set out in section 11(2) of the Act.
57.Under section 11(4) of the Act, a motion for the removal of the Speaker must specify:the grounds for removal as specified in section 11 (2) of the Act; and the facts constituting those grounds.
58.Clearly, there is a distinction between the ‘’Notice of intention to remove the Speaker’’ issued under section 11(2) of the Act and the ‘’Motion for the removal of the Speaker’’ issued under section 11(4) of the Act. In the former, all that the law requires is for the notice to state the naked grounds for the proposed process of removal of Speaker. Conversely, in the latter document, the law not only requires that the naked grounds for removal be stated but also the particulars of the facts constituting those grounds. I understand the law as saying that whilst the first of these two documents merely expresses the intention to move a motion to remove the Speaker, the second one actualizes this intention by moving the motion for impeachment.
59.From the evidence that was tendered by the parties, what the 3rd Respondent filed with the 2nd Respondent, the Clerk of the 1st Respondent on 21st April 2021 was a ‘’Notice of Motion for the removal of the Speaker.’’ There is no evidence of the 3rd Respondent having filed with the 2nd Respondent a ‘’Notice of Intention to Remove the Speaker.’’ What is clear from the evidence by the defense is that the Respondents treated the two documents as one and the same.
60.The documents presented to the 2nd Respondent and which is clearly headed ‘’Notice of Motion’’ while stating the grounds for the proposed removal of the Petitioner in compliance with section 11(2) of the CGA does not provide the facts or particulars in support of the proposed grounds in contravention of section 11(4) of the CGA. In a bid to excuse this failure to comply with the requirement of law, the 2nd Respondent stated that the particulars of the charges against the Petitioner were included in the Hansard Report of 28th April 2021 which was sent to the Petitioner.
61.There are however, challenges presented by the position expressed by the 2nd Respondent that particulars of the accusations against the Speaker can be incorporated in a document other than the Notice of Motion. First, section 11(4) of the CGA which provides for the requirement to provide particulars of the grounds for impeachment is expressed in mandatory terms. And the subsection specifies the document that should contain these particulars as the notice of motion and not the Hansard report.
62.Second, from the way the law is couched, the Speaker is entitled to be notified of the particulars of the offense against him as soon as the notice of intention to impeach him is issued. This is intended to enable him sufficient time to prepare and share his defense both with the Clerk of the County Assembly and the County Assembly.
63.If the particulars of the charges are to be supplied through the Hansard report by the County Assembly establishing the ad hoc committee to investigate them, it means that the Speaker will have been deprived of the chance to effectively respond to the accusations at the point they were presented to the Clerk and the County Assembly in the first instance. Had these particulars been availed to him prior to these two stages, it is probable that he would have offered a suitable defense at the pre-committee stage that would have rendered it unnecessary for the County Assembly to recommend the formation of an ad hoc select committee to look into it.
64.In their submissions, the lawyers for the Respondents argue that the Petitioner did not plead non- issuance of the Notice of Intention to Move a Motion for Removal of Speaker as a ground for attack. As such he ought not to be allowed to build his case on this ground as it falls outside his pleadings.
65.I respectfully do not agree with the Respondents on this point. Paragraph 9 of the Amended Petition states that the Notice of Motion for the removal of the Petitioner was debated and passed by the 1st Respondent without following the procedure laid down under, inter alia, section 11 of the CGA and Standing Orders 69 and 75 of the 1st Respondent’s Standing Orders. The Petitioner then goes ahead to reiterate this position at paragraph five (5) of his affidavit dated 15th June 2021 which was adopted in evidence.
66.It is section 11 of the CGA that provides for the requirement for issuance of a notice of Intention to Move a Motion for the Removal of Speaker. Thus, by pleading that the procedure under this section was not followed, the Petitioner was simply stating that all the process under the section including the issuance of the notice aforesaid were not adhered to. And indeed, this is clear from the Petitioner’s affidavit of 15th June 2021 which is his evidence in support of the foregoing pleading.
67.Under section 11 (5) of the Act, once the Clerk receives the notice of intention to remove the Speaker, he must within five (5) days of such receipt notify the Speaker of the charges and invite him to respond to them. The Speaker’s response must be in writing and be tendered within seven (7) days from the date of notification of the charges. The Speaker is at liberty to plead the grounds of opposition to the motion if any.
68.In his evidence, the 2nd Respondent stated that once he received the Notice of Motion on 21st April 2021, he approved it and forwarded it to the acting Speaker of the 1st Respondent on the same day. There is no mention of the 2nd Respondent having notified the Petitioner of the notice of intention to remove him by the 3rd Respondent contrary to section 11(5) of the CGA. Similarly, there is no evidence that the 2nd Respondent requested the Petitioner in writing to state his objection to the motion for his removal before the notice was forwarded to the 1st Respondent contrary to the stipulations of section 11(5) of the CGA. In fact, the first time the Petitioner was served with the notice was on 30th April 2021 after the acting Speaker and 1st Respondent had on 28th April 2021 deliberated on and approved it for further processing without the input of the Petitioner’s defense.
69.Under section 11(5) of the CGA, once the Speaker is notified by the Clerk of the intention to remove him, he has seven (7) days to file his objection if any. This is before the matter can be escalated to the County Assembly for further processing.
70.The purpose of these provisions of law is to protect the Speaker’s right to be heard in response to the allegations against him at this preliminary stage. In my view, this is a pivotal requirement towards protecting the right to due process as contemplated under article 236 of the Constitution.
71.From the record, the 2nd Respondent threw this legal obligation to the wind and sacrificed the rights of the Petitioner to due process at the altar of convenience. Instead of following the procedure set out under section 11 of the CGA, the 2nd Respondent bypassed the Petitioner and forwarded the Notice of Motion directly to the acting Speaker of the 1st Respondent on the very same day that he received it thereby throwing into jeopardy the Petitioner’s right to fair administrative action. This was notwithstanding that the process that had been initiated by the Respondents was going to adversely affect the Petitioner’s right to remain in office.
72.The other issue with the Notice of Motion is how it was endorsed. On the face of it, the Motion was signed by one (1) individual, the 3rd Respondent. Since the Respondents elected to treat the document as both the ‘’Notice of Intention to Remove the Speaker’’ and ‘’Notice of Motion for the Removal of the Speaker’’, it was for the 3rd Respondent to have the document signed by at least one third (1/3) of the twenty- three (23) members that admittedly constitute the membership of the 1st Respondent excluding the Speaker.
73.The 2nd Respondent asserts that the notice was signed by eighteen (18) members. In support of this contention, he relies on the addendum list dated 21st April 2021 that has names of eighteen (18) individuals with their signatures on it.
74.The Petitioner on the other hand states that the document he received through email on 30th April 2021 bore only the signature of the 3rd Respondent. The other document with signatures of eighteen (18) individuals was not included in the documents sent to him on 30th April 2021.
75.First, since the Petitioner contested having been served with a notice supported and signed by the eighteen (18) individuals, this became a contested fact in the cause. Its resolution required the tendering of evidence.
76.As it is the Respondents who asserted that the notice of intention to remove the Petitioner was signed by more than one third (1/3) of the 1st Respondent’s members, the evidential burden lay with them to provide evidence to demonstrate that the motion sent to the Petitioner on 30th April 2021 contained the addendum list with the signatures of the eighteen (18) individuals that are said to have been in support of it. This is particularly so because it is the Respondents who stated that they served the Petitioner with the compliant notice.
77.Further, since the notice was sent by the Respondents electronically, it was within their power to display the raw email data to the court to show the actual content of the documents annexed to the said email. For some reason, this was not done.
78.The addendum list raises genuine concerns that were never addressed by the Respondents. For instance, in the ordinary sequence of events, if a document runs into several pages, it is generally expected that it will be paginated to demonstrate continuity. Yet, neither the notice of motion by the 3rd Respondent nor the list is paginated to give credence to the assertion by the Respondents that one is the continuation of the other.
79.Second, the 3rd Respondent is shown as having signed on the face of the notice. Yet, he again appended his signature on the addendum list. Why would an individual sign a document twice where there is no express legal requirement that he does that? Does the fact of double signature by the 3rd Respondent on the two documents not suggest that the 2nd document is in fact a separate and distinct instrument?
80.Whilst the SOs acknowledge the fact that the notice of intention to remove Speaker may be delivered to the Clerk while unsigned, the proviso to SO 69(6) states that in such case, the Clerk shall prepare a list of all the members of the County Assembly with a space for their signature which shall be headed ‘’Signatures in Support of a Motion for the Removal of the Speaker.’’ The addendum list is certainly not the list contemplated under this proviso. It neither contains the names of all the twenty- three (23) members of the 1st Respondent nor does it bear the title aforesaid.
81.The document by the 3rd Respondent purporting to be either the ‘’Notice of Intention for Removal of Speaker’’ or ‘’Notice of Motion for the Removal of the Speaker’’ certainly had grave gaps. I am therefore not convinced that the notice of intention to remove the Petitioner that was initially issued contained the signatures of at least one third (1/3) of the members of the 1st Respondent in support of the proposed removal.
82.Standing Order number 69(8) provides as follows regarding constitution of the ad hoc select committee to investigate the removal of a Speaker of the 1st Respondent: -
83.In effect, the ad hoc select committee must comprise of at least a third of the total membership of the 1st Respondent for it to be compliant with the 1st Respondent’s SOs. The parties are in agreement that the 1st Respondent had, at the time of the matters giving rise to the cause of action in this case, a total of twenty three (23) members of County Assembly. It is also common ground that mathematically, a third of this membership is about seven decimal six (7.6) persons. And as a natural person cannot be fragmented into a fraction, the logical thing would be to round off the decimal six to the nearest round number.
84.The Respondents argue that the 1st Respondent settled for seven (7) members to address the above challenge. In the Respondents’ view, the decision to go with seven (7) members was because it was desirable for the committee to have an uneven membership just in case any of its decisions was to require resolution through voting. That the other nearest number to the one third (1/3) requirement would have been eight (8) members which is an even number.
85.It is not contested that the SOs of the 1st Respondent require the ad hoc committee under SO 69 (8) to be made up of one third (1/3) of the total membership of the 1st Respondent. Seven (7) is a third of twenty one (21). It therefore does violence to logic for the Respondents to say that by settling for seven (7) individuals as members of the ad hoc committee, the 1st Respondent met threshold set by its own SOs.
86.In terms of matters rounding off, the standard practice is that when there is need to round off, one rounds off to the nearest number. In this case, the nearest number to seven decimal six (7.6) is eight (8) not seven (7). Therefore, the Respondents would ordinarily have been expected to round off their number to eight (8). However, as eight (8) is an even number, the nearest uneven number to eight (8) which satisfies the quorum requirements of SO 69(8) would be nine (9). It is therefore baffling that the Respondents elected to settle for seven (7) members to sit on the ad hoc select committee because this was certainly below quorum.
87.I appreciate that under section 53 of the Interpretations and General Provisions Act (IGPA), the committee’s decision may not be impugned if it is made while there is a vacancy in its membership. However, the word ‘’vacancy’’ denotes the fact of an unoccupied position. This presupposes that the position has first been created and exists.
88.In the current case, it is not that the ad hoc committee had been established with the requisite statutory membership of one third (1/3) but that one or more of its members had vacated office at the point it rendered its decision in respect of the Petitioner. What was obtaining at the committee was not a vacancy within the meaning of section 53 of the IGPA. It was just a case of a committee set up in contravention of the rules.
89.At the time of its creation, the 1st Respondent’s committee was set up with seven (7) members. And when it undertook investigations and made its decision these seven (7) members were all on board. Therefore, having regard to its initial formation, it cannot be reasonably argued that the committee had a vacancy at the time of rendering its decision.
90.It is perhaps also necessary to point out that SO 69(8) uses a mandatory term ‘’shall’’ when directing that the ad hoc committee to be set up should comprise one third (1/3) of the membership of the County Assembly. In the face of such command, it is doubtful that the 1st Respondent had the discretion to set up a committee with less than one third (1/3) of its membership.
91.The Respondents argue that the Petitioner’s objection to the committee’s constitution through this Petition comes too late. That the Petitioner’s lawyers never raised this issue when they appeared before the committee on 3rd May 2021 to seek an adjournment of its proceedings. That it is an afterthought. Consequently, the court should ignore the grievance.
92.I do not agree with this view expressed by the Respondents. We cannot possibly confer jurisdiction on an improperly constituted organ through acquiescence.
93.A decision of an improperly constituted body amounts to no decision. For all purposes and intents, such decision is null and void.
94.Accordingly, I hold that to the extent that the ad hoc select committee set up to investigate the Petitioner was under-populated ab initio, it was improperly constituted. Therefore, its report on the Petitioner was null and void for want of proper constitution.
95.The record shows that after its constitution on 28th April 2021, the ad hoc committee scheduled its first meeting on 3rd May 2021 at 10.00 am. It then went ahead to prepare a notice dated 29th April 2021 inviting the Petitioner to the session of 3rd May 2021. Although the notice was apparently ready on 29th April 2021 as is evident from the date on the face of the document, it was not dispatched to the Petitioner until 30th April 2021 at 3.54 pm as is clear from the email trail from the 1st Respondent of even date.
96.At page six (6) of the ad hoc committee’s report dated 4th May 2021, the committee members indicate that while applying for the adjournment of the hearing, the Petitioner’s lawyers pointed out to the committee that the Petitioner had not been afforded sufficient time to prepare for his defense. That the Petitioner only learned of the invite to attend the session for 3rd May 2021 on 30th April 2021 at around 10.00pm. That the two days given to the Petitioner to prepare his defense (1st and 2nd May 2021) fell on a weekend rendering it logistically difficult to prepare for the session.
97.It is also noted that besides the lawyers’ application on 3rd May 2021, the Petitioner had sent a letter through email to the 1st Respondent on 1st May 2021, a Saturday pleading for a fresh date on account of absence of adequate time to prepare his defense, inability to instruct his lawyers as they did not work on weekends and his ill health. This evidence is contained in the Petitioner’s supplementary affidavit dated 15th June 2021.
98.That 1st and 2nd May 2021 fell on a weekend is not denied by the Respondents. I have also taken the liberty to look at the calendar and it fortifies the Petitioner’s assertion.
99.I note that the email inviting the Petitioner to the session of 3rd May 2021 having been dispatched towards 4:00 p.m. on 30th April 2021 left the Petition with hardly an hour before the close of business on that day to work on his defense. And as the Petitioner was to appear before the committee at 10.00 am on the next available working day, he hardly would have had time to assemble an answer to the accusations against him.
100.As I pointed out earlier, although the notice inviting the Petitioner was apparently ready on 29th April 2021 (a Thursday) the 1st Respondent did not deliver it to the Petitioner until 30th April 2021 at 3.54 pm (late Friday afternoon). Noting that the mode of service of the notice was through email, one cannot resist but wonder what prevented the Respondents from dispatching the email to the Petitioner on the Thursday that it was signed. Whilst the Respondents may have been working within very tight timelines, doesn’t this conduct betray absence of good faith on their part? By this action, were the Respondents and the ad hoc committee really mindful of facilitating the Petitioner’s right to fair hearing during the session? It is not reasonable to entertain the thought that they were not?
101.In his evidence and pleadings, the Petitioner alluded to the fact that he was ejected from his office and was not allowed access to the said office thereafter. At the point of his removal, the Petitioner stated that he was not even allowed a chance to pick his personal belongings and medicine. Given that the charges against him were related to his work, it is reasonable to expect that some of the material he would have desired to have in his defense would be at his work place. How was the Petitioner to access such material in the short time between the Friday evening that the invite was sent out and the Monday morning that he was to appear before the committee? When was he to exercise his constitutional right to seek legal representation if he so elected?
102.On the 3rd May 2021, the committee’s report also shows that the other reason why the Petitioner asked that the matter be moved forward was that he was unwell and on bed rest. Whilst not denying the fact of his ailment, the committee declined to move the matter to another date. The explanation given for this action is that the committee had ten (10) days to investigate and report on the matter. That the Petitioner’s request would have meant that the committee adjourns up to 7th May 2021. This is notwithstanding that the committee’s report shows that the lawyers asked for adjournment up to 6th May 2021. They were ready for any date between 6th May 2021 and 11th May 2021.
103.The 2nd Respondent stated that the 1st Respondent conducts its business on Tuesdays and Wednesdays only. Therefore, to fit into the timelines set under SO 69(8) and the 1st Respondent’s time table, the Petitioner’s case had to be prosecuted on a date falling before 4th May 2021 so that the committee’s report is ready and presented latest on 5th May 2021, a Wednesday.
104.I was not shown any law that forbids the 1st Respondent from convening sessions outside Tuesdays and Wednesdays to accommodate genuine situations such as sickness where it has to meet timelines like those appearing in SO No. 69(8). On the contrary SO 28(1) & (3) permits holding of full house sessions outside of Tuesdays and Wednesdays.
105.Importantly, as can be discerned from the ad hoc committee’s report, it was able to sit and conclude its business on 3rd May 2021. If it was able to do this on 3rd May 2021, what would have prevented it from hearing the matter and preparing its report on 6th May 2021 as it did on 3rd May 2021 in order to keep to the timelines under the SOs? I raise all these issues so as to demonstrate the fact that the conduct of the ad hoc committee cannot be described as anything but unreasonable in the circumstances. It certainly infringed on the Petitioner’s right to fair administrative action.
106.Standing Order 75(1) protects the right of a person facing removal from office proceedings to be heard. This right can only be lost on compelling and cogent grounds. It cannot be whimsically wished away as happened in the Petitioner’s case.
107.Standing Order 75(2) reads as follows: -
108.By this regulation, the 1st Respondent was under duty to provide the Petitioner with the report of the ad hoc committee at least three (3) days before it convened its full session to debate the report. From the evidence on record, the ad hoc committee sat and concluded its investigations on 3rd May 2021. That same day at about 3:57 pm, the acting Speaker of the 1st Respondent sent out an invitation to the Petitioner to attend the full session of the 1st Respondent the following day to offer his response before the report of the ad hoc committee could be debated. According to the notice, this was to happen on 4th May 2021 at 9.30 am.
109.The invitation by the 1st Respondent to the Petitioner to attend a full house session the following day was clearly in contravention of its own SOs requiring that the ad hoc committee’s report be shared with the Petitioner at least three (3) days before convening the full house session. What is more, the email of 3rd May 2021 sending the Petitioner the notice to appear before the full house on 4th May 2021 did not attach a copy of the ad hoc committee’s report.
110.Again, it is noted that the email aforesaid was dispatched to the Petitioner late on 3rd May 2021 (3.57 pm) and required him to be ready with his rebuttal to a report he had not seen by 9.30 am the following day. Obviously, this left the Petitioner in a very awkward position. It neither gave him the time to defend himself nor the material to prepare the defense. What was the Petitioner to respond to before the full house on 4th May 2021 if the 1st Respondent had not shared the ad hoc committee report with him at the time of the invite or at all? From the record, this report was only shared with the Petitioner on 5th May 2021 after he had been allegedly impeached.
111.Further I take note of the fact that it is these same Respondents who had just some hours earlier on 3rd May 2021 (through the ad hoc committee) been notified of the ill health of the Petitioner and the fact that he was on bed rest for at least seven (7) days from 29th April 2021. Regardless of this information, the 1st Respondent was nevertheless ready to hold its full house session the following day at 9.30 am to prosecute the Petitioner’s removal from office. To the Respondents, it did not matter that the person they were dealing with was down out of ill health. It is therefore not accurate for the defense counsel to submit as she did that the Petitioner elected not to attend the session of 3rd May 2021 without valid reasons.
112.The evidence on record shows that the 1st Respondent issued the Petitioner with an invite to answer to the report by the ad hoc committee even before the ad hoc committee presented the report to the 1st Respondent. The report filed in evidence shows that it was signed off by the ad hoc committee on 4th May 2021. It was then handed over to the 1st Respondent’s acting Speaker for his approval on the same, 4th May 2014. The record shows the acting Speaker approved the report on the morning of 4th May 2021 just in time for the debate by the House on it at 10.30 O’clock. Yet on 3rd May 2021, the 1st Respondent had already issued an invite to the Petitioner to attend the full house on 4th May 2021 to respond to the report.
113.Many questions arise from the foregoing scenario. Did the 1st Respondent get the report from the ad hoc committee before it was even ready? How can the Respondents explain the fact of inviting the Petitioner on 3rd May 2021 to respond to a report which was signed off by the ad hoc committee on 4th May 2021?
114.From the foregoing, it is clear to me that the conduct of the 1st Respondent and its officers in processing the case against the Petitioner was less than candid. It is otherwise difficult to find a reasonable explanation why the 1st Respondent was, so to speak, putting the cart before the horse with regard to handling of the ad hoc committee’s report as can be discerned from the events of the afternoon of 3rd May 2021 and the morning of 4th May 2021.
115.The record is replete with effort by the Respondents to fast track the Petitioner’s case. While it is true that SO 69 set timelines for concluding the investigations against the Petitioner, I find it difficult to justify the Respondents’ conduct solely on the basis of an honest desire to meet the timelines set by this regulation.
116.For instance, why did the 2nd Respondent elect to forward the notice of intention to impeach the Petitioner to the 1st Respondent on the same day that he received it in total disregard of the regulations requiring that the filing of the notice be first brought to the attention of the Petitioner? Why did the 2nd Respondent consider that it was unnecessary to get the Petitioner’s comments on the notice before forwarding it to the 1st Respondent when the law appears to obligate him to permit such a response? Why did the ad hoc committee invite the Petitioner to appear before it on a Monday morning through a notice served on him on a late Friday afternoon leaving the Petitioner with only a weekend to determine what to do with his defense when the invitation notice had been ready much earlier? Why did the ad hoc committee decline to hear the Petitioner even on 6th May 2021 within its timelines and prepare its report on the same day even when there is evidence that it was able to achieve this feat on 3rd May 2021? Why did the 1st Respondent invite the Petitioner to appear before it even before it received the report of its ad hoc committee or shared such report with the Petitioner?
117.Earlier on in this judgment I documented the fact that the Respondents were aware of the existence of this case earlier than 4th May 2021. This is because the learned Judge then handling the case had on 28th April 2021 directed that they be served in two (2) days. And there is an affidavit of service showing that they were served on 30th April 2021 and duly instructed counsel who came on record on 4th May 2021.
118.On 4th May 2021, counsel for the parties recorded a consent whose effect was to prevent further prosecution of the business of the 1st Respondent in relation to the Petitioner’s impeachment unless the 1st Respondent was satisfied that it was within the law. As is the law, an advocate is presumed to act on the instructions of the instructing client. Therefore, the consent recorded by counsel on the morning of 4th May 2021 was ostensibly on the instructions of their clients who are the parties to this action.
119.As things would turn out, on the morning of 4th May 2021, the 1st Respondent went ahead to approve the recommendations of its committee to impeach the Petitioner. This was even as the Respondents’ Advocates were before the ELRC recording a stay order ostensibly on the instructions of the same parties. This is why in the earlier part of this judgment I indicated that the events at the 1st Respondent’s chambers on 4th May 2021 may have happened without the knowledge of the Petitioner. If it is to be presumed that the lawyers were recording the consent on 4th May 2021 to stall the impeachment pursuant to their clients’ instructions, it was reasonable for the Petitioner not to have expected that the 1st Respondent would at the same time be pressing to conclude the impeachment as the parties had presumably agreed to have their lawyers record a consent on those terms in court the same morning. Unless the Respondents are saying that their lawyers did not have their instructions to record the stay order of 4th May 2021, they cannot feign ignorance of the consent at the time they were prosecuting the impeachment motion.
120.From their pleadings and through their written submissions, the Respondents surprisingly take a different turn on the issue relating to their knowledge of the order when they argue that they were unaware of it at the time they effected the impeachment as they were yet to be served with it. Question is: why would a party not respect an ostensible agreement between them purportedly because their agent had not notified them that he had delivered it to the court?
121.It is instructive to note that the reason the Respondents plead non -compliance with the orders of 4th May 2021 is not that they truly believed that they were acting within the law when processing the impeachment of the Petitioner. Rather, that they had not been served with the orders. Yet, the orders having issued pursuant to an agreement between their lawyers, the parties are presumed not only to have had knowledge of them before hand but also to have sanctioned their issuance.
122.The totality of the foregoing leads to the irresistible conclusion that the Respondents’ move to impeach the Petitioner was motivated by suspect intentions. Whilst I may not make any comments on whether the Respondents’ conduct amounted to contempt of court there being no application for such orders before me, it is perhaps necessary to comment that the judicial process ought to be treated with some measure of respect for the good of the public.
123.The Respondents have sought to rely on a number of decisions in support of their case. I wish to comment on these decisions.
124.In the case of Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] eKLR, the Petitioner, County Speaker of Kiambu against whom the impeachment motion was filed was accused of abuse of office on the grounds of inter alia using public resources for private purpose. He was also accused of awarding contracts for legal services in violation of public procurement laws.
125.In Nick Githinji case and unlike in the case before me, there was evidence of a notice of intention to move a motion to impeach the Petitioner having issued. There was evidence that this was followed by a motion for his removal. There was also evidence that the notice of motion gave details of the accusations against the Speaker.
126.Further, the Petitioner who was targeted for removal is shown as having approved the proceedings for his own removal as regularly processed before the full house sat to impeach him. The Petitioner is then shown as having attended the full house session where the motion for his removal was debated and passed. He was offered the chance to defend himself and did participate in the proceedings fully.
127.Clearly, the Nick Githinji case is distinguishable from the current case. In that case, there is evidence of strict compliance with the procedure for removal of Speaker set out under the now repealed Section 11 of the CGA. The same thing cannot be said of the proceedings against the Petitioner in the current case under the current Section 11 of the CGA.
128.Importantly the Nick Githinji case underscored the need to strictly comply with the provisions the law when processing the removal of a County Speaker. The court stated as follows: -
129.In George Onyango Oloo v Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 others (Interested Parties) [2019] eKLR, the court was of the view that the Petitioner had received notice of the impeachment which set out details of the grounds for impeachment. The details are in fact set out in the court’s decision. Further, the court observed that the Petitioner who had been served a day earlier was spotted at the County Assembly on the day of the motion when he held a press conference and promised to attend the afternoon session to defend himself. However, he failed to turn up for the session without reason and contrary to what he had indicated during the press conference that morning.
130.Whilst I am not bound by the decision in the George Onyango case and I have my reservations whether the learned Judge was right in holding that the Petitioner was afforded sufficient time to defend himself in view of the time he was served with the Notice of Motion and the time it was heard, I note that in that case, the Petitioner did not give any reason for failing to turn up for the hearing at the Assembly. I also not that the court did not scrupulously scrutinize whether the impeachment process met all the requirements set out under the law.
131.Butiya Nickson Wilson Isiji v Speaker, County Assembly of Vihiga & 2 others [2021] eKLR involved removal of the Deputy Speaker, County Government of Vihiga. I note that the learned Judge found as a fact that the Deputy Speaker attended the plenary of the County Assembly during the prosecution of the removal motion but declined to participate. Hence, in the learned Judge’s view, the Deputy Speaker squandered the opportunity to participate in the cause and could not thereafter be heard to complain that he had been denied the right to be heard. Outside this and besides the finding that the same requirements for removal of County officers under SO 70 apply to the positions of Governor, Deputy Governor, Speaker, Deputy Speaker and County Executive Committee member, I do not see the court as having scrupulously interrogated the provisions for removal of these officers and whether they were complied with in the dispute. I am however not bound by the reasoning of my learned brother in the matter.
132.In the case of Ameja Zelemoi v County Assembly of Baringo Speaker of the County Assembly of Baringo & another [2020] eKLR, the court considered whether the Petitioner, who had been removed from the position of Deputy Governor, was entitled to an order for reinstatement. The court noted that the position lost by the Petitioner was not a substantive office as he continued serving as Member of County Assembly. Noting that there was no property in a public office, the court declined to order reinstatement or compensation for allowances lost by the Petitioner from the date he was removed from office.
133.While I agree with the court’s view in the Ameja Zelemoi case, it is important to note that it is distinguishable from the case before me. In the former, the Petitioner had been removed from office and replaced by another elected Deputy Governor. The office was therefore no longer available. In the case before me, Justice Ongaya issued interim conservatory orders preventing the gazzetment of the impugned impeachment and preserving the vacancy that had arisen from the process. This means that neither was the impeachment finalized nor did the office of Speaker get a fresh substantive holder. Put differently, the Petitioner did not lose the position of Speaker in law even though he may not have been in the office as a matter of fact.
134.Importantly, most of the cases referred to by the Respondents were decided before the amendments to the County Governments Act through the County Governments (Amendment) Act No. 11 of 2020. These changes came into force on 27th July 2020. And as the Petitioner’s purported impeachment happened after 21st April 2021, the new law applied to his case. Necessarily, the cases falling before the date of the July 2020 amendments to the CGA do not express the current legal position on the matter.
135.Section 14 (1) of the CGA empowers County Assemblies to make their own SOs to assist them manage their proceedings in an orderly manner. However, such SOs must be consistent with Acts of Parliament and the Constitution. It is pursuant to this mandate that the 1st Respondent promulgated its SOs on 5th November 2014.
136.I have looked at SO 69 that provides the procedure for the removal of a sitting Speaker. In my humble view, it has some glaring inconsistencies with provisions of the CGA as currently amended, the Fair Administrative Action Act and the Constitution.
137.For instance, whilst section 11(5) of the CGA now requires the County Clerk to share the notice of intention to move a motion to remove the Speaker with the Speaker intended to be removed and invite him to give his response to the accusations against him, SO 69 seems to sidestep this requirement. Similarly whilst Section 11(4) of the CGA now requires the Notice of Motion for removal of the Speaker to set out the grounds for the proposed removal and the facts in support of such grounds, SO 69 appears not to have been amended to include this as a requirement.
138.Whilst section 4 of the Fair Administrative Action Act prescribes a duty for those exercising power to ensure procedural fairness (which includes informing an individual of accusations against him before hand), SO 69 by purporting to sidestep the duty to share the notice of intention for removal with the Speaker intended to be removed prior to placing the said notice before the House for purposes of constitution of the ad hoc committee appears to go against the grain and spirit of the aforesaid Act. The same thing can be said of SO 69 as read against article 236 of the Constitution. To the extent that the SO does not expressly obligate the Clerk to disclose to the person against whom the removal is sought the accusations leveled against him before hand, it is inconsistent with the dictates of due process prescribed by article 236 of the Constitution.
139.Under section 31(b) of the IGPA, subsidiary legislation must not be inconsistent with provisions of an Act of Parliament. Where there is inconsistency between the two, such inconsistency will be resolved in favour of the statute and where applicable, the Constitution.
140.Section 24 (2) of the Statutory Instruments Act gives even more drastic directions with regard to provisions in statutory instruments that are inconsistent with the parent Acts or indeed any other Act of Parliament. Such provisions are deemed null and void to the extent of such inconsistency.
141.SO 69 of the 1st Respondent ought to be considered through the aforesaid lens. The challenges with the 1st Respondent’s S.Os arise from the fact that they have not been amended to comply with the recent changes in the law. In my view, it may be helpful if the 1st Respondent had a second look at them.l.Whether the impugned impeachment process measures to requirements of due process under the Constitution and the Fair Administrative Action Act
142.From the above analysis, it is my holding that the Respondents’ attempt to remove the Petitioner in effect violated the Petitioner’s rights. The actions were done, substantially outside the parameters of the law and Constitution.
143.And there was a measure of bad faith in the manner the whole process was executed. It appears to me that the Respondents were determined to remove the Petitioner from office at all costs. In my view, this process would have been handled in a more humane way while upholding respect for due process. But this was not the case.
144.The Respondents have addressed me at length regarding the variance in the orders sought by the Petitioner in his pleadings and submissions. It is contended that to issue the orders requested for in the submissions would violate the rule against parties pursuing cases outside their pleadings.
145.In a sense, I partially agree with the Respondents’ counsel’s position that a court cannot issue orders that are obviously at variance with those sought by a party in his pleadings. However, I think that a court may grant orders that may not have been expressly pleaded where such orders are consequential to some other relief that is expressly sought and which has been granted and if the orders are necessary for the effectual implementation of the reliefs so granted. (see Timsales Ltd –vs- Samuel K. Kihara (2016) eKLR, Cheruiyot –vs- Bartiony (1988) eKLR and Bell & Another –vs- LL. Matterello Ltd (Civil Appeal No. 72 of 2019) (2022) KECA.
146.I also note that section 12 of the Employment and Labour Relations Court Act empowers the court to grant any other appropriate relief as it may deem fit. I understand this as permitting the court to grant reliefs that though not expressly prayed for are nevertheless intricately connected to the subject under dispute and if such orders are necessary for the effective resolution of the dispute. It is in this context that I will consider the reliefs to grant. In any event, I note from the Amended Petition that one of the prayers by the Petitioner is for the court to issue him with any further and or other orders that may be just and appropriate in the circumstances.
147.Secondly, the Petitioner has suggested that the orders of certiorari cannot issue in the current proceedings not being Judicial Review proceedings. I do not agree with this proposition. Under article 22 of the Constitution, all proceedings brought in enforcement of a right are amenable to Judicial Review orders. This is notwithstanding that they are filed as constitutional Petitions or Judicial Review motions.
148.Further, the Respondents urge the court not to issue orders for reinstatement of the Petitioner as the term of the 1st Respondent has come to a close. That such order will be in vain in view of the impending general elections of 9th August 2022.
149.I will only observe in this respect that the effect of the order issued by Ongaya J on 12th May 2021 is that the Petitioner’s impeachment was stalled midstream. It was not finalized through publication of a Gazette Notice. As a result, the Petitioner never lost his position. This being the position, he does not require an order of reinstatement into an office that he never lost in law.
150.Besides, under section 11 (1) (a) of the CGA, a seating Speaker remains in office until the new County Assembly first meets after an election. Therefore, the Petitioner remains in office until after the elections of 9th August 2022 and the first meeting of members of the 1st Respondent.
151.I therefore grant the Petitioner’s prayers in the amended Petition as prayed but more specifically as follows: -a.I declare the process initiated on 21st April 2021 by the Respondents leading to the formation of the ad hoc committee to investigate the Petitioner and the subsequent report generated by the ad hoc committee (dated 4th May 2021) and as well the decision and or resolution by the 1st Respondent on 4th May 2021 adopting the motion to impeach the Petitioner as null and void.b.I issue and order of certiorari to bring before this court and quash the report of the ad hoc committee dated 4th May 2021 and the decision and or resolution of the 1st Respondent of even date purporting to pass the motion to adopt the report to impeach the Petitioner.c.The consequence of the first two orders (and in line with the interim orders issued on 12th May 2021) is that the Petitioner is deemed not to have lost his office and benefits attendant thereto as a result of the impugned impeachment. And to avoid the need for further applications in the matter, the 1st Respondent shall through the 2nd Respondent pay the Petitioner his salary.d.I issue an order of injunction barring the 1st, 2nd, 3rd and 4th Respondents either by themselves or through their agents and or employees and or other servants from implementing the impugned decision of the ad hoc committee dated 4th May 2021 and the impugned resolution of the 1st Respondent dated 4th May 2021 purporting to impeach the Petitioner.e.I declare that the Respondents’ actions aforesaid against the Petitioner violated the Petitioner’s rights to equal protection of the law, due process, fair administrative action and human dignity.f.I award the Petitioner general damages of Two Million Five Hundred Thousand Kenya Shillings (Ksh. 2,500,000/=) being compensation for violation of his rights aforesaid.g.I award the Petitioner costs of this case.
DATED, SIGNED AND DELIVERED ON THE 29TH DAY OF JULY, 2022B. O. M. MANANIJUDGEIn the presence of:Binyenya for the PetitionerMulwa for the RespondentsORDERIn view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M. MANANIJUDGE
MALINDI ELRC CONSTITUTIONAL PETITION NO.6 OF 2021 JUDGMENT 12
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