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ELRCDismissedPetition (including Notice of Motion dated 9th November 2015) - Migori; application for conservatory orders· [2016] KEELRC 793 (KLR)

Gordon Ogola v County Assembly of Migori [2016] KEELRC 793 (KLR)

Employment and Labour Relations Court
16 May 2016
MOMaureen Onyango
4,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear a County Assembly Speaker's employment dispute, but refused to reinstate him because his removal had already made the case academic.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Migori by Maureen Onyango J, delivered on 16th May 2016, on a notice of motion by Gordon Ogola, the elected Speaker and Chairman of the County Assembly Service Board of the Migori County Assembly, seeking conservatory orders compelling the Respondent to allow him to resume office pending the hearing of his petition. The dispute arose from a resolution passed on 27th October 2015 requiring all members of the County Assembly Service Board, including the Petitioner, to step aside for 60 days following a report of the County Public Investments and Accounts Committee on the Assembly's books of account, with investigations referred to KENAO. The Respondent argued the court lacked jurisdiction, that the resolution was a legitimate oversight function not justiciable, and that the application had been overtaken by events as the Petitioner had been removed as Speaker on 25th November 2015, a removal subject of Petition No. 31 of 2015. On jurisdiction, the court followed Nick Githinji Ndichu v Clerk Kiambu County Assembly and the USIU decision as approved in Mugendi v Kenyatta University, holding that the Speaker's relationship bore the attributes of a contract of service, so the ELRC had jurisdiction. On the merits, the court held that the report recommended only stepping aside for investigations, not removal, so section 11 of the County Governments Act did not apply; further, the petitioner had not established a prima facie case with probability of success or irreparable injury, and any orders would be academic since he had been removed as Speaker. The application was dismissed with each party bearing its own costs. The main petition remains pending.

Key legal issues

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01

Jurisdiction of the ELRC over disputes involving a Speaker of a County Assembly

Holding

The court had jurisdiction, following Nick Githinji Ndichu v Clerk Kiambu County Assembly and USIU v Attorney General as approved in Professor Daniel N. Mugendi v Kenyatta University

Reasoning

Article 162(2)(a) and section 12 of the ELRC Act confer exclusive jurisdiction over employment disputes. Relying on Nduma J's decision in Nick Githinji Ndichu, the court held that the Speaker has a contract of service attributes: providing services for a wage/salary. The court expressly agreed with that rendition and added nothing further.

p. 8
02

Entitlement to conservatory orders pending the petition

Holding

The application was dismissed because the petitioner failed to establish a prima facie case with probability of success or irreparable injury not compensable by damages

Reasoning

Applying the settled East African interlocutory injunction principles, the applicant must show a prima facie case with probability of success and irreparable injury. The report only recommended the Board step aside for investigations, not removal under section 11 of the County Governments Act. Further, the petitioner had since been removed as Speaker, making the orders academic.

p. 9

Legal principles established

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  • The law is not concerned with the method of acquiring an employee; a person elected or appointed serving for wage or salary under a contract of service falls within the ELRC's jurisdiction
  • Courts do not grant orders in vain where the relief sought has been overtaken by events

Court orders

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  1. 1.The application for conservatory orders was dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticles 10, 22, 23, 47, 50, 165(3), 178(1)
  • Employment and Labour Relations Court ActSection 12
  • County Governments ActSections 11, 12(7), 17, 20(1)
  • Employment ActSection 2
  • Fair Administrative Action Act
  • Industrial Court ActSection 12
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23 and 24
  • County Assembly of Migori Standing OrdersStanding Orders No. 55, 56 and 59(4)

Cases cited (10)

  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Joseph Maina Theuri v Gitonga Kabugi & 3 others
    [2013] eKLR
  • Nick Githinji Ndichu v Clerk Kiambu County Assembly & Another
    [2014] eKLR
  • United States International University (USIU) v Attorney General
    (2013) eKLR
  • Professor Daniel N. Mugendi v Kenyatta University and 3 others
    Civil Appeal No. 6 of 2012
  • Mary Aliviza & Okoth Mondoi v Attorney General of Kenya and Secretary General of East African Community
    Application No.3 of 210, EALS Law Digest 2005-2011 P.1
  • Gladys Boss Shollei v Judicial Service Commission
    Petition No.39 of 2013
  • Sergeant v Paul
    (1949) 16 E.A.C.A 63
  • Noor Mohamed Hanmohamed v Kassamali Virji Madhani
    (1953) 20 E.A.C.A 8
  • Garden Cottage Food Limited v Milk Marketing Board
    (1984) A.C.130
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gordon Ogola v County Assembly of Migori [2016] KEELRC 793 (KLR)", Case Analysis (2016). Petition (including Notice of Motion dated 9th November 2015) - Migori; application for conservatory orders. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/793/eng@2016-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.