By Michael Murungi
Town Clerk, Municipal Council of Embu & another v John N.M. Nyaga [2007] eKLR
(www.kenyalaw.org)
Court of Appeal at Nairobi
(Appeal Judges S.E. Bosire, E.M. Githinji & W.S. Deverell)
December 7, 2007
John N. M. Nyaga was elected as a councillor of Kamiu ward for Municipal Council of Embu in the year 2001 and subsequently, on 6th July, 2006 he was elected as the mayor of the Municipal Council of Embu. On 23rd October, 2007 the Minister for Local Government dissolved all councils to pave way for the civic election to be held together with Presidential and Parliamentary General Elections on 27th December, 2007.
The dissolution of the council was published in the Kenya Gazette No. 10228 of 23rd October, 2007. On the same day the Permanent Secretary in the Ministry of Local Government issued guidelines to all Town Clerks on how the affairs of the councils were to be managed. The circular notified the Town Clerks that with the dissolution, the offices of the Mayors, Chairmen and Councillors had been rendered vacant and that all office holders should vacate their offices and surrender all properties of councils.
John Nyaga filed a suit in the High Court against the Municipality of Embu and its town clerk. He stated that as a Mayor he was supposed to continue in office until a succeeding Mayor was elected and asked the Court for a declaration to that effect. He also asked for a permanent injunction restraining the Town Clerk and the Municipal Council from barring him from performing any duty as a Mayor and from enjoying his office, civic regalia, motor vehicles and other facilities due to his office. By an interlocutory application filed with the plaint, he asked for an injunction against the respondents and to be allowed to continue in his office as a Mayor. The application was heard and allowed on 7th November, 2007 and an order was issued allowing John Nyaga to continue in office.
The Municipal Council and the Town Clerk filed an appeal against the decision and brought an application asking the Court of Appeal to stay the order of the High Court pending the hearing of the appeal. The following is an excerpt from the decision of the Court of Appeal on that application.
“The decision of the High Court was mainly dependent on the construction of section 13 (2) of the Local Government Act which provides:
“Subject to section 16 the mayor shall, unless he resigns or ceases to be qualified or becomes disqualified, continue in office until his successor is elected and assumes offices”.
The High Court construed that section to mean that Parliament did not intend that the office of the mayor should at any time be vacant; that Parliament never intended the occupant of the office to be removed until a replacement is in office.
Section 58 (1) of the Act under which the Minister dissolves all councils provides:
“Where there is general election under the National Assembly and Presidential Elections Act, there shall simultaneously be held an election of all councillors required to be elected under this Act and for that purpose the Minister shall forthwith upon dissolution of Parliament, dissolve all Local authorities”.
Section 12 (1) provides, among other things, that a Municipal council shall consist of a number of councillors as may be elected, nominated or appointed. Under Section 13 (1), a Mayor of a municipal council shall be elected by the council from among the councilors at the first meeting of the council and subsequently at each second annual meeting of the council. Section 27 (1) limits the term of office of the elected councillor to 5 years.
The Acting Town Clerk swears in the supporting affidavit, among other things, that section 13 (2) of the Act is inapplicable once the council is dissolved; that a mayor cannot continue to be in office while enjoying the perks and privileges of such office when a council is dissolved; that the respondent who by operation of law ceased to be a councillor cannot sit as a mayor; that the respondent did not move the High Court to quash the order of the minister dissolving all councils and that section 13 of the Act was not properly construed.
It is clear from the Act that the Mayor is elected from amongst the councillors and that the mayor and the councillors constitute a council.
It is not also contested that a Mayor is elected periodically every two years and that the Minister acted lawfully when he dissolved all councils to pave way for civic elections. Some of the pertinent questions which arise, are firstly, whether section 13 (2) of the Act applies to periodic elections of Mayors or to all cases including when the Council has been dissolved pursuant to law, and secondly, whether the office of a Mayor can legally exist when the whole council including the offices of councillors has been lawfully dissolved. On analysis, we are satisfied that the intended appeal raises a serious question of national importance on the interpretation of the law regarding the term of office of a Mayor.
The Acting Town Clerk further deposes that unless the orders of the High Court are stayed, the intended appeal would be rendered nugatory.
The respondent has been granted at an interlocutory stage the same reliefs that he seeks in the suit. The interlocutory orders are operative pending the hearing and determination of the suit. It is highly improbable that the respondent would be interested in the prosecution of the suit having obtained the desired orders or that the suit would be heard before the 27th December, 2007 when national civic elections are due. It would be unjust and a heavy financial burden to the Council which is run by public funds to maintain a Mayor in office indefinitely when the existence of the office is seriously contested. Furthermore, the Council would suffer great financial loss, if it is ultimately found that the office of a Mayor to which the respondent has been restored by a court order did not legally exist after the dissolution of the Council. On the other hand, if the application is allowed and the appeal is ultimately dismissed, the respondent can be adequately compensated for any financial loss that he may have suffered.
In the final analysis, the application is allowed with the result that the execution of the Ruling/Orders of the High Court dated 7th November, 2007 is stayed pending the hearing and determination of the intended appeal.
The costs of this application shall be costs in the intended appeal”.
Town Clerk, Municipal Council of Embu & another v John N.M. Nyaga [2007] eKLR
(www.kenyalaw.org)
Court of Appeal at Nairobi
(Appeal Judges S.E. Bosire, E.M. Githinji & W.S. Deverell)
December 7, 2007
John N. M. Nyaga was elected as a councillor of Kamiu ward for Municipal Council of Embu in the year 2001 and subsequently, on 6th July, 2006 he was elected as the mayor of the Municipal Council of Embu. On 23rd October, 2007 the Minister for Local Government dissolved all councils to pave way for the civic election to be held together with Presidential and Parliamentary General Elections on 27th December, 2007.
The dissolution of the council was published in the Kenya Gazette No. 10228 of 23rd October, 2007. On the same day the Permanent Secretary in the Ministry of Local Government issued guidelines to all Town Clerks on how the affairs of the councils were to be managed. The circular notified the Town Clerks that with the dissolution, the offices of the Mayors, Chairmen and Councillors had been rendered vacant and that all office holders should vacate their offices and surrender all properties of councils.
John Nyaga filed a suit in the High Court against the Municipality of Embu and its town clerk. He stated that as a Mayor he was supposed to continue in office until a succeeding Mayor was elected and asked the Court for a declaration to that effect. He also asked for a permanent injunction restraining the Town Clerk and the Municipal Council from barring him from performing any duty as a Mayor and from enjoying his office, civic regalia, motor vehicles and other facilities due to his office. By an interlocutory application filed with the plaint, he asked for an injunction against the respondents and to be allowed to continue in his office as a Mayor. The application was heard and allowed on 7th November, 2007 and an order was issued allowing John Nyaga to continue in office.
The Municipal Council and the Town Clerk filed an appeal against the decision and brought an application asking the Court of Appeal to stay the order of the High Court pending the hearing of the appeal. The following is an excerpt from the decision of the Court of Appeal on that application.
“The decision of the High Court was mainly dependent on the construction of section 13 (2) of the Local Government Act which provides:
“Subject to section 16 the mayor shall, unless he resigns or ceases to be qualified or becomes disqualified, continue in office until his successor is elected and assumes offices”.
The High Court construed that section to mean that Parliament did not intend that the office of the mayor should at any time be vacant; that Parliament never intended the occupant of the office to be removed until a replacement is in office.
Section 58 (1) of the Act under which the Minister dissolves all councils provides:
“Where there is general election under the National Assembly and Presidential Elections Act, there shall simultaneously be held an election of all councillors required to be elected under this Act and for that purpose the Minister shall forthwith upon dissolution of Parliament, dissolve all Local authorities”.
Section 12 (1) provides, among other things, that a Municipal council shall consist of a number of councillors as may be elected, nominated or appointed. Under Section 13 (1), a Mayor of a municipal council shall be elected by the council from among the councilors at the first meeting of the council and subsequently at each second annual meeting of the council. Section 27 (1) limits the term of office of the elected councillor to 5 years.
The Acting Town Clerk swears in the supporting affidavit, among other things, that section 13 (2) of the Act is inapplicable once the council is dissolved; that a mayor cannot continue to be in office while enjoying the perks and privileges of such office when a council is dissolved; that the respondent who by operation of law ceased to be a councillor cannot sit as a mayor; that the respondent did not move the High Court to quash the order of the minister dissolving all councils and that section 13 of the Act was not properly construed.
It is clear from the Act that the Mayor is elected from amongst the councillors and that the mayor and the councillors constitute a council.
It is not also contested that a Mayor is elected periodically every two years and that the Minister acted lawfully when he dissolved all councils to pave way for civic elections. Some of the pertinent questions which arise, are firstly, whether section 13 (2) of the Act applies to periodic elections of Mayors or to all cases including when the Council has been dissolved pursuant to law, and secondly, whether the office of a Mayor can legally exist when the whole council including the offices of councillors has been lawfully dissolved. On analysis, we are satisfied that the intended appeal raises a serious question of national importance on the interpretation of the law regarding the term of office of a Mayor.
The Acting Town Clerk further deposes that unless the orders of the High Court are stayed, the intended appeal would be rendered nugatory.
The respondent has been granted at an interlocutory stage the same reliefs that he seeks in the suit. The interlocutory orders are operative pending the hearing and determination of the suit. It is highly improbable that the respondent would be interested in the prosecution of the suit having obtained the desired orders or that the suit would be heard before the 27th December, 2007 when national civic elections are due. It would be unjust and a heavy financial burden to the Council which is run by public funds to maintain a Mayor in office indefinitely when the existence of the office is seriously contested. Furthermore, the Council would suffer great financial loss, if it is ultimately found that the office of a Mayor to which the respondent has been restored by a court order did not legally exist after the dissolution of the Council. On the other hand, if the application is allowed and the appeal is ultimately dismissed, the respondent can be adequately compensated for any financial loss that he may have suffered.
In the final analysis, the application is allowed with the result that the execution of the Ruling/Orders of the High Court dated 7th November, 2007 is stayed pending the hearing and determination of the intended appeal.
The costs of this application shall be costs in the intended appeal”.
2 comments:
As Jubilee Congregation organizes to mastery its mega birthing and start on Sabbatum, Sep 10 in Nairobi, Raila Odinga’s ODM has annunciated it desire mastery a twin gathering in City - https://tuko.co.ke/189936-will-raila-launch-his-presidential-bid-on-saturday-september-10-we-have-the-details.html
JoelsBlog
Post a Comment