[2015] KEHC 829 (KLR)
The court found that the process of removal of the Petitioners as County Executive Committee Members was conducted in accordance with the Constitution and the County Government Act. The adoption of the Select Committee's report by the County Assembly did not amount to the Committee acting as judge in its own cause,...
Source-derived case information.
- Citation
- [2015] KEHC 829 (KLR)
- Parties
- Petitioner: Hon. Stephen Mring’a Masamo; Petitioner: Hon. Joseph Mbogo; Petitioner: Dr. Vincent Masawi; Petitioner: Eng. Elijah Mwandoe; Petitioner: Hon. Gifton Mkaya; Petitioner: Hon. Flora M. Mtuweta; Respondent: The County Assembly of Taita Taveta; Respondent: The Speaker of the County Assembly of Taita/Taveta; Respondent: The Select Committee of the County Assembly of Taita Taveta
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 83 of 2014
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed with costs to the respondents
- Judges
- MJA Emukule
- Legal Topics
- Right to Fair Hearing, Removal From Public Office, County Government Procedure, Committee Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Stephen Mring’a Masamo
Petitioner
Hon. Joseph Mbogo
Petitioner
Dr. Vincent Masawi
Petitioner
Eng. Elijah Mwandoe
Petitioner
Hon. Gifton Mkaya
Petitioner
Hon. Flora M. Mtuweta
Petitioner
The County Assembly of Taita Taveta
Respondent
The Speaker of the County Assembly of Taita/Taveta
Respondent
The Select Committee of the County Assembly of Taita Taveta
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Petitioners were denied the right to be heard before their removal as County Executive Committee Members.
- 2 Whether the adoption of the Select Committee Report by the County Assembly amounted to a breach of the Petitioners. constitutional rights.
Ratio Decidendi
The court found that the process of removal of the Petitioners as County Executive Committee Members was conducted in accordance with the Constitution and the County Government Act. The adoption of the Select Committee's report by the County Assembly did not amount to the Committee acting as judge in its own cause, as the Assembly as a whole made the decision. The court held that there was no breach of the Petitioners' right to be heard, as the procedures followed were consistent with constitutional and statutory requirements. Consequently, the Petitioners' claim of violation of their rights under Article 50 was not substantiated, and the petition was dismissed.
Court Disposition
petition dismissed with costs to the respondents
Orders
- The Petition dated 31st December, 2014 is dismissed.
- Costs awarded to the Respondents.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 83 OF 2014
IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 22, 47, 48, 50, 159, 160,
165 AND 259 OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF: SECTION 40 OF THE COUNTY GOVERNMENT ACT, 2012 LAWS OF KENYA
IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 47,
50 AND 159 OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF: THE ALLEGED REMOVAL OF SIX COUNTY EXECUTIVE COMMITTEE
MEMBERS DUE TO INCOMPETENCE AND ABUSE OF OFFICE
BETWEEN
1. HON. STEPHEN MRING’A MASAMO
2. HON. JOSEPH MBOGO
3. DR. VINCENT MASAWI
4. ENG. ELIJAH MWANDOE
5. HON. GIFTON MKAYA
6. HON. FLORA M. MTUWETA.....................................................PETITIONERS
AND
1. THE COUNTY ASSEMBLY OF TAITA TAVETA
2. THE SPEAKER OF THE COUNTY ASSEMBLY OF TAITA/TAVETA
3. THE SELECT COMMITTEE OF THE
COUNTY ASSEMBLY OF TAITA TAVETA.................................RESPONDENTS
JUDGMENT
1. In the Ruling delivered on 7th July, 2015, this court stayed for a period of 21 days the Resolution of the County Assembly of Taita/Taveta removing the Petitioners pending the determination of the Petition herein.
2. I have had the benefit of hearing both the Petitioners’ counsel as well as counsel for the Respondents. I have also had the benefit of reviewing in depth the submissions of counsel for both the Petitioners and the Respondents, and I am satisfied that the only viable ground of the Petition lies in the claim by the Petitioners that they were not heard which is a cardinal principle of the Constitution of Kenya 2010 and in particular Article 50 thereof, which in essence embodies the cardinal principle of the common law, European or African that no person may be condemned unheard or conversely no person may be a Judge in his own cause.
3. Thus in matters of criminal prosecution, the suspect or accused is a king or queen who has a heritage of rights which the accuser does not expressly have. However, in matters civil, which include Parliamentary processes at the national and county levels, both the National Assembly and the Senate, work through committees. The Committees do the leg or ground work, compile and make their reports to the National Assembly or the Senate which either adopts or rejects the Report of the respective Committees.
4. Likewise, at the County level, the County Assembly works through Committees. The Committees does the preparatory work, makes its report, and forwards it to the County Assembly which either adopts or rejects the Report of the respective Committee.
5. It is correct to say that members of the Committee are also members of the County Assembly. It is not however the Committee which decides that the Committee Report be adopted as a whole or adopted subject to amendment, or be rejected in its entirety.
6. In my humble view, where the National Assembly, or, as in this case, the County Assembly adopts the Report of its Committee, it is not the Committee, adopting its own Report, or being a Judge in its own house, but rather the County Assembly sitting in lawful session which deliberates and adopts the Report. In so doing, it is carrying out its mandate under Article 185(3) of the Constitution of Kenya 2010.
7. In the circumstances, I do not find that any rights of the Petitioners were breached. The Petition dated 31st December, 2014 is therefore dismissed with costs to the Respondents.
Dated, Signed and Delivered in Mombasa this 10th day of December, 2015.
M. J. ANYARA EMUKULE
JUDGE
In the presence of:
Mr. Bwire for the Petitioners
Mr. Otieno holding brief for Mr. Weda for the Respondents
Court Assistant Ms. Pamela Osodo