Philgona Atieno Ooko v Governor Siaya County & 4 others [2016] KEELRC 938 (KLR)
The bottom line
#A county governor cannot simply sack a County Executive Committee member with a termination letter - courts will preserve their office until due process is followed.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders should issue to preserve the Petitioner in office pending trial
Yes - applying the Supreme Court's test in Gatirau Peter Munya and considering that the Respondents had not demonstrated fair process, the Court granted conservatory orders and an injunction preserving the status quo
The Court cautioned itself not to determine the merits at this interlocutory stage but found the replying affidavit and termination letter disclosed no process amounting to fair labour practice or due process under Articles 41(1), 47 and 236(b). Guided by the Court of Appeal decisions on removal of CEC members and the Supreme Court's conservatory orders test, it held the Petitioner had satisfied the test and granted orders preserving her office and barring appointment of a replacement pending determination.
Which statute governs the appointment and removal of County Executive Committee members
The County Governments Act is the primary statute; the Employment Act 2007 applies only to fill voids
The Court held that appointment and terms and conditions of CEC members are governed primarily by the County Governments Act, with the Employment Act coming into play only where there are voids. This framed the legal basis on which the Governor's reliance on sections 35(5) and 36 of the Employment Act in the termination letter was viewed at the interlocutory stage, alongside the constitutional protections for public officers.
Legal principles established
#- The primary statute governing the appointment and terms and conditions of County Executive Committee members is the County Governments Act and not the Employment Act, 2007, which applies only to fill voids
- Conservatory orders bear a public law connotation and are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes
Court orders
#- 1.A conservatory order restraining and/or prohibiting the 1st Respondent from terminating the service of the Petitioner as Executive Committee Member, Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
- 2.A conservatory order protecting, preserving and/or conserving the status of the Petitioner as the Executive Committee Member for Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
- 3.An order of injunction prohibiting and/or restraining the 1st Respondent from appointing, proposing and/or constituting any other person as the Executive Committee Member for Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
- 4.The Respondents to file and serve an Answer to Petition and any other appropriate process before 29 July 2016
- 5.The Petitioner to file and serve any reply thereto and written submissions before 12 August 2016
- 6.The Respondents to file and serve their written submissions before 26 August 2016
- 7.Submissions to be highlighted on a date convenient to the Court and parties
- Jurisdiction invoked
- Original constitutional jurisdiction under Articles 41(1), 47 and 236(b) of the Constitution of Kenya 2010 (Petition alleging violation of constitutional rights)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ahmed Aden Hire v Natif Jama & another [2016] KEELRC 20 (KLR)[2016] KEELRC 20 (KLR)5 Dec 2016
Cite this brief
#Cite this brief
Caselaw, "Philgona Atieno Ooko v Governor Siaya County & 4 others [2016] KEELRC 938 (KLR)", Case Analysis (2016). Petition filed 7 April 2016 (Kisumu) - ruling on Notice of Motion dated 7 April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/938/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.