The Court of Appeal in Civil Appeal Nos. 17 & 18 of 2015 (Consolidated)- County Assembly of Kisumu & 2 others -Versus- Kisumu County Assembly Service Board & 6 others [2015] eKLR (hereafter the Kisumu Civil Appeals No.17& 18 of 2015) in a case challenging the impeachment of the inaugural Speaker of the County Assembly of Kisumu opined as follows after upholding the decision of the High Court quashing the said impeachment of the Speaker:
“89. The principle of devolution, under which the County Governments were created, is one of the central pillars of our Constitution. Everything should therefore be done to strengthen and not trifle with the operations and processes of its constituent parts, in particular those of County Governments. The County Governments have to comply with the letter and the spirit of the Constitution. If they don’t and instead violate the Constitution and the processes created under it, the court, by virtue of the authority conferred upon it by the same Constitution as its custodian, is under an obligation to overrule them.”
ELRC Petition No.1 of 2024- Maria Abdallah -Versus- County Assembly of Kisumu & Another (hereafter Kisumu ELRC Petition No.1 of 2024) is a constitutional petition filed to challenge the constitutionality of amendments to the section 10 of the Kisumu County Administration (Village Units) Act, 2019. The amendments were to allow the County Assembly of Kisumu to have approval powers over the persons appointed as Village Administrators by the Kisumu County Public Service Board. By having this power, the County Assembly would arrogate to itself human resource functions bestowed on the County Public Service Board with the great danger of allowing party politics as a basis of appointing the Village Administrators and not on consideration of the standards, values and principles set out in Articles 10, 27(4), 56(c) and 232(1) of the Constitution, the prescribed qualifications for holding or acting in the office, the experience and achievements attained by the candidate, the need to ensure that the candidates proposed for appointment have knowledge and experience in diverse fields. This is a violation of the Constitution and section 52 of the County Government Act,2012. The Act was challenged for want of public participation, breach of the Constitution and the County Government Act.
The Court agreed with the petitioner that, the Act was not subjected to qualitative and quantitative public participation. The court agreed with the submissions that the Bill subjected to public participation had only one (1) clause with two (2) subclauses and in passing section 10 the County Assembly introduced five (5) sections with four (4) subsections which fundamentally altered the Bill that had been subjected to public participation. On this basis, the Court found that:
“20…That resulted in the enactment of the Kisumu County Administration (Village Units) Act 2024. In my considered view the discussions on the amended clauses deprived the public of their right to public participation.”
The County Assembly in passing the Kisumu County Administration (Village Units) Act, 2024 undermined the essence of public participation as espoused by the Court of Appeal in Legal Advice Centre & 2 others -Versus- County Government of Mombasa & 4 others [2018] eKLR.
On substance, the Court went on to agree with the petitioner that, section 52 of the County Government Act was conclusive on the appointment of the Village Administrator by the County Public Service Board and there is no requirement of approval by the County Assembly as proposed by section 10 of the impugned Act.
The passage of the Act was also found to be fraught with procedural and legal impurities and in particular, the procedure of introducing the Bill to the County Assembly on the aspect of the proposer and the seconder of the Bill on the floor of the County Assembly.
In the end, the ELRC held that, the impugned provision of the law in the Kisumu County Administration (Village Units) Act 2024 being the outcome of a flawed Bill namely, the Kisumu County Administration (Village Units) Amendment Bill 2023, is hereby declared unconstitutional, null and void to that extent.
The decision of the Court in Kisumu ELRC Petition No.1 of 2024 is one of the measures of defending and strengthening devolution and especially, the County Public Service Board and their human resource functions of appointing the Village Administrators. This is in comport with the dictum by the Court of Appeal in Kisumu Civil Appeals No.15 & 18 of 2015 of doing everything to strengthen devolution.
Prepared By:
PATRICKS LAW ASSOCIATES
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com/plassadvocates@gmail.com or 0700753748.
