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
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Written by Moses Masai
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