The County Assembly of Tana River has been temporarily barred from implementing a resolution it passed to impeach Speaker Michael Nkaduda.
The Employment and Labour Relations court further ordered the assembly not to gazette or declare the resultant vacancy of the Speaker or fill it with another person.
Justice Byram Ongaya ruled that the assembly breached statutory procedures in initiating the impeachment proceedings against Mr Nkaduda.
The judge noted that the motion to impeach Mr Nkaduda fell short of a proper motion of intention to impeach him as per the County Government Act as it was not signed by at least a third of all members of the assembly.
“Further, the court finds that as urged for the applicant, the motion for removal of the applicant while purporting to list conceived grounds failed to set out the facts constituting the grounds as required in subsection 11(4) (b) of the Act.,” said Justice Ongaya.
The court noted that whereas it found the process initiating the impeachment to have been in breach of the relevant statutory provisions, it further found that the ad hoc committee proceeded without considering Mr Nkaduda’s case at all.
“That amounted to serious breach of the petitioner’s entitlement to be heard. There is no dispute that the applicant was on bed rest as was demonstrated before the committee by his advocates,” said Justice Ongaya.
Justice Ongaya also said that the impeachment appeared to have proceeded in complete disregard of the Speaker’s right to be heard towards his exculpation and that the processes and procedures flowing from the work of the committee were already impaired.
Mr Nkaduda had argued that the impeachment proceedings were not presided by a member elected under section 9(4) of the County Governments Act and the tabling and adoption of the select ad hoc committee report by the assembly was contemptuous of the court, unlawful and in breach of the law.
The Speaker sued the Assembly, the Clerk of the Assembly and three Members of the County Assembly (MCA’s).
He argued that the assembly being aware that its recommendations if implemented would amount to his removal from public office, it did not issue prior and adequate notice of the nature and reasons for the disciplinary action taken against him.
Mr Nkaduda argued that the assembly’s select ad hoc committee was a calculated scheme aimed at hounding him out of a state office without following due process.
On its part, the assembly said that it listened to the mover (of the impeachment motion) and after investigation found allegations based on incompetence and gross misconduct as substantiated to warrant dismissal of the Speaker.
The respondents argued that the assembly debated a motion for removal of the Speaker by considering the committee’s report.
They also argued that the Speaker failed to attend (the session) despite invitation and that 20 members voted for the motion with one being absent and another presiding as acting Speaker.
The respondents argued that the procedure of impeachment of the applicant was legal and procedural per the safeguards in law.
According to the respondents, what the Speaker was seeking sought to undermine separation of powers between the judiciary and the legislature.
In the main suit, the Speaker wants an order issued declaring the impeachment unlawful and also an order issued quashing the decisions made in the impeachment proceedings.
He also wants a permanent injunction that the respondents do not implement the decisions at all.
Justice Ongaya further encouraged the parties to compromise the petition with a view of recording a consent in court at the next mention or to take steps towards its expeditious determination. BY DAILY NATION