Judge: Members of County Assemblies can't impeach county executives

The 47 county assemblies are today some of the most powerful institutions in Kenya.

Some of the powers which members of the county assemblies (MCAs) have been wielding with relish is that of impeaching governors and even members of the county executive committees.

Last week, the High Court delivered a judgement that sent a message to MCAs to slow down.
The judgement was delivered by Bungoma judge Alfred Mabeya in a petition filed by Stephen Peter Nendela, the county executive for Roads and Public Works.

Sometime last year, the county government awarded tenders for road works for the year 2013/2014.

Soon afterwards, Mr Nendela allegedly began receiving phone calls from some MCAs and their associates demanding to be awarded the tenders.

gross misconduct

He reportedly declined these requests, reasoning that if all the 45 representative units in Bungoma share the Sh712,000,000 meant for roads in the county, each would get only Sh15,822,222.

This would be too minimal for any meaningful impact.
On March, 25, 2014, a Motion for his removal was tabled before the County Assembly of Bungoma under section 40 of the County Governments Act (CGA).

This section provides for removal of a county executive member on grounds of incompetence, abuse of office, gross misconduct among others.

The law allows an MCA to propose a Motion requiring the governor to sack the county executive member. That Motion must be supported by one third of all the MCAs.

Under Section 43(3), the county assembly is required to appoint a select committee of five MCAs to investigate the issues raised in the Motion and report its findings within 10 days

If the allegations are substantiated, the county assembly should then proceed to vote on the Motion. If the vote is in favour of removal, the member shall be dismissed by the governor.

The Motion to remove Nendela was passed on April, 14 2014. He was summoned to appear before a select committee of the Assembly the following morning to defend himself.

Instead, he filed a petition at the High Court in Bungoma, challenging the constitutionality of the process.

He said the inquiry was unconstitutional, arbitrary, pre-determined and actuated by malice, self-interest and improper motive.

He further argued that the process violates the rules of natural justice. He claimed he had not been given adequate notice for his defence, sufficient detail of allegations against him and a chance to be represented by an advocate of his choice.

But most importantly, he challenged the constitutionality of Section 40 of the CGA.

Partisan MCAs

He named the county assembly, the committee and the clerk of the assembly as the respondents. Bungoma governor and the Governor’s Council were named as interested parties.

He argued that allowing partisan MCAs or a committee to vote in plenary for removal of a member of executive introduces caprice, personal and subjective standards that are incompatible with fairness and impartiality.

The respondents in their response argued that the county assemblies had powers of oversight over the county executive committee including the removal of the executive members under Section 40 of the CGA.

They claimed Nendela had been in office since June, 2013 and had not presented any strategic plan to the assembly.

The respondents denied that any MCA had sought favours from Nendela over the road works, saying he had failed to produce any work plan for the budgetary allocation under his docket.


They submitted that no case had been made by the petitioner on how being summoned to appear before the select committee violates the Constitution.

They argued that the committee was properly constituted and it had adhered to Article 50 of the Constitution.

The court identified six issues for determination and dealt with them exhaustively in a 36-page judgement. However, the most important was whether Section 40 (3) of the County Government Act was inconsistent with Article 50 of the Constitution.

Article 50 (1) of the Constitution provides for fair hearing before a court or another independent and impartial tribunal or body.

Justice Mabeya acknowledged that Article 185 (3) of the Constitution gives the county assembly oversight functions over the county government and its organs.

The judge noted that under Section 40 of the County Government Act, the county assemblies had the power to pass a Motion introduced by one MCA for removal of executive member, to investigate allegations leveled against the executive member, receive a report on the allegations and to vote for the dismissal.

“In my view, this is a perfect example of the complainant or accuser being both the investigator, the prosecutor and the judge. All the members of the assembly are interested in the outcome of the proceedings in that, having passed the motion to investigate the county executive committee member, it is difficult to disabuse their minds when carrying out their investigations as to the intention of the assembly,” the judge ruled.

He said Article 50 of the Constitution is very specific that a dispute has to be decided in a fair manner and by an independent and impartial body.

impartial body

“To my mind, the select committee cannot be the independent and impartial body or tribunal envisaged by Article 50 (1) of the Constitution. The select committee is not only part of the assembly that sanctions the Motion for investigation, but its members are part of the assembly that will vote for or against the recommendations for removal of the county executive committee member,” he said.

He ruled that Section 40 (3) of the CGA was contrary to the constitutional principle of fair hearing hence null and void.

 “Accordingly, this court holds that constitutionally, no county assembly can purport to remove a county executive committee member pursuant to Section 40 (3) of the CGA. Parliament should enact a law that provides for a separate, independent impartial and unbiased body that will be charged with the jurisdiction of carrying out investigations once a Motion is passed by a county assembly.To the extent that no such independent and impartial body exists, county assemblies cannot purport to remove a member of the county executive committee from office. That will be unconstitutional,” he concluded as he saved Nendela from being sent home by the MCAs.