REPUBLIC v MINISTER FOR LOCAL GOVERNMENT & ANOTHER EX-PARTE PAUL MUGEITHI JOEL [2008] eKLR

Key Facts

Issues

• The court analyzed whether the 1st Respondent acted in excess of his powers under the Local Government Act by revoking the Applicant's nomination. The Applicant claimed the revocation was ultra vires as it failed to follow the prescribed procedure in section 27(2) of the Act, which mandates written notice to the councilor before termination.
• The second issue examined whether the revocation of the Applicant's nomination and the subsequent illegal nomination of Nancy Wanjiru Kamande as his replacement under Gazette Notices 7070 and 7071 of August 5, 2008, were unreasonable and unlawful. The Applicant contended that the revocation process did not comply with the Local Government Act, particularly section 40(1), which requires written notice to the councilor.
• The court considered whether the 1st Respondent's decision to revoke the Applicant's nomination as a councilor was made in blatant breach of the rules of natural justice, specifically the principle of audi alteram partem (hear the other side). The Applicant argued that the revocation was procedurally unfair due to lack of notice and opportunity to respond.

Holdings

• In HIGH COURT MISC CIVIL APPLICATION NO 521 OF 2008, the court quashed Gazette Notices 7070 and 7071 for unlawful revocation and replacement of the Applicant. Costs were awarded to the Applicant against the 1st Respondent.
• In HIGH COURT MISC CIVIL APPLICATION NO 482 OF 2008, the court quashed Gazette Notice No. 7070 for procedural irregularities. The mandamus prayer was dismissed, and a prohibition order was issued against swearing in replacements under the invalid Gazette Notice 7071.
• In REPUBLIC v MINISTER FOR LOCAL GOVERNMENT EX PARTE RACHAEL WANJIRU KAMWERU (No. 474 of 2008), the court quashed Gazette Notices 7070 and 7072 for non-compliance with section 27 of the Local Government Act. The Applicant's lack of political sponsorship was acknowledged, and costs were split.
• In HIGH COURT MISC CIVIL APPLICATION NO 542 OF 2008, the court quashed Gazette Notice No. 7072 for procedural irregularities. The prohibition and mandamus prayers were dismissed, and costs were split.
• In HIGH COURT MISC CIVIL APPLICATION NO 100 OF 2008, the court quashed Gazette Notice No. 7070 for procedural irregularities, dismissed the mandamus prayer, and ordered parties to bear their own costs. The Applicant's lack of political sponsorship was noted as a disqualifying factor.
• In HIGH COURT MISC CIVIL APPLICATION NO 485 OF 2008, the court quashed Gazette Notices 7070 and 7072 for procedural non-compliance. The Applicant's lack of political sponsorship was noted, and costs were split.
• The court issued an order of certiorari to quash Gazette Notice No. 7070 (revoking the Applicant's nomination) and Gazette Notice No. 7071 (nominating Nancy Wanjiru Kamande as a replacement). The revocation was found to violate the rules of natural justice as the Applicant was not notified. An order of prohibition was issued to prevent the swearing-in of Nancy Wanjiru Kamande, while the prayer for mandamus was dismissed as unnecessary.
• In HIGH COURT MISC CIVIL APPLICATION NO 505 OF 2008, the court dismissed the application for lack of locus and without merit. The Applicant, not a nominated councilor, had no standing to challenge the nomination.
• In HIGH COURT MISCELLANEOUS APPLICATION NO. 606 OF 2008, the court quashed the revocation of the Applicant's nomination for lack of notice and issued a prohibition order. The mandamus prayer was dismissed as unnecessary.
• In HIGH COURT MISCELLANEOUS CIVIL APPLICATION NO. 516 OF 2008, the court quashed Gazette Notice No. 7070 for non-compliance with section 27. The Applicant's irregular nomination was noted, and costs were split.
• In HIGH COURT MISC CIVIL APPLICATION NO 479 OF 2008, the court quashed Gazette Notice No. 7070 for failure to follow proper revocation procedures. The mandamus and prohibition prayers were dismissed, and costs were split.
• In HIGH COURT MISC CIVIL APPLICATION NO 484 OF 2008, the court quashed Gazette Notice No. 7070 for failure to comply with the Local Government Act. The mandamus prayer was dismissed, and a partial prohibition order was issued against swearing in replacements.

Remedies

• The court issued an order of certiorari to remove and quash Gazette Notice No. 7070 (revoking the applicant's nomination as a councilor) and Gazette Notice No. 7071 (nominating Nancy Wanjiru Kamande as a replacement), finding both decisions were made in breach of natural justice and procedural requirements under the Local Government Act.
• Mandamus applications seeking reinstatement of councilors were dismissed across multiple cases (e.g., No. 518 of 2008) as the court could not compel respondents to perform acts that would violate statutory procedures or override their lawful discretion.
• Orders of prohibition were granted in cases such as No. 482 of 2008 to prevent local authorities from swearing in individuals nominated via flawed Gazette Notices (e.g., Notices 7070 and 7072) until proper procedures were followed.
• In several related cases (Nos. 100, 474, 479, 482, 484, 521, 542 of 2008), the court issued certiorari to quash Gazette Notices revoking nominations of councilors due to procedural violations and failure to comply with natural justice principles.
• The court dismissed the mandamus prayer to compel the 1st respondent to reinstate the applicant as a councilor, noting the applicant remains in office until lawfully removed and no further action was required.
• The court issued an order of prohibition to restrain the 1st and 2nd respondents from swearing in Nancy Wanjiru Kamande as a nominated councilor under Gazette Notice No. 7071, as the underlying decision was unlawful and void.

Legal Principles

• The court applied judicial review principles, including ultra vires actions and Wednesbury unreasonableness, to assess the Minister's revocation of the applicant's nomination and subsequent appointment of a replacement councilor. The decision was found unlawful due to failure to follow statutory procedures.
• The court emphasized the violation of the audi alteram partem principle of natural justice, as the applicant was not given an opportunity to be heard before the revocation of their nomination. This procedural flaw rendered the decision void ab initio.

Precedent Name

• BOARD OF EDUCATION v RICE
• REPUBLIC v JUDICIAL SERVICE COMMISSION EX PARTE PARENO
• ASSOCIATED PROVINCIAL PICTURES v WEDNESBURY CORPORATION
• TAIB A. TAIB v THE MINISTER FOR LOCAL GOVERNMENT
• GENERAL MEDICAL COUNCIL v SPACKMAN
• NAIROBI HIGH COURT MISC CIVIL APPLICATION NO. 1769 of 2003

Cited Statute

• Local Government Act
• Constitution of Kenya

Judge Name

Passage Text

• "Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void."
• "The Gazette Notice Nos. 7070 and 7071 must be quashed... because the 1st Respondent did not follow the laid down procedure under section 27 of the Local Government Act."
• "The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself..."