James Omariba Nyaoga v Chairman, County Assembly Service Board & another; County Assembly Service Board (Interested Party) [2021] KEELRC 799 (KLR)

Summary at a glance

Facts

James Omariba Nyaoga was appointed as the Clerk of the County Assembly in 2013. On 5 March 2021, the Chairman of the County Assembly Service Board sent him on compulsory leave. Nyaoga moved the Court, contending the decision violated the County Assembly Services Act, 2017, and the Constitution.

Issues

• Whether the Respondents are seized and/or possessed of the mandate to send Nyaoga on compulsory leave
• Whether the provisions of section 76(6) of the County Governments Act apply to employees of the County Assembly Service Board
• Whether compulsory leave is legally provided for and/or otherwise lawful in the absence of statutory provisions
• Whether compulsory leave can issue and/or be issued against Nyaoga in the face of the explicit provisions of sections 22 and 23 of the County Assembly Services Act
• Whether the actions by the Respondents have breached and/or violated the fundamental rights of Nyaoga and, in particular, the right to fair labour practice in terms of Article 41 of the Constitution
• Whether the actions by the Respondents raise and/or disclose any reasonable cause of action

Reasoning

The decision to send Nyaoga on compulsory leave was unilateral and without requisite jurisdiction. Section 76(6) of the County Governments Act does not apply to the Petitioner and/or employees of the County Assembly Services Board. The decision to send Nyaoga on compulsory leave is quashed.

Outcome

Petition granted, Cross-Petition dismissed

Orders

• A declaration that the decision to send Nyaoga on compulsory leave was unilateral and without requisite jurisdiction
• A declaration that section 76(6) of the County Governments Act does not apply to the Petitioner and/or employees of the County Assembly Services Board
• An order quashing the decision to send Nyaoga on compulsory leave

Remedies

• A declaration that the decision to send Nyaoga on compulsory leave was unilateral and without requisite jurisdiction
• A declaration that section 76(6) of the County Governments Act does not apply to the Petitioner and/or employees of the County Assembly Services Board
• An order quashing the decision to send Nyaoga on compulsory leave

Authorities cited