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ELRCPartially AllowedPetition (Kisumu ELRC, 2017)· [2018] KEELRC 1359 (KLR)

Nashon Wilson Oguya & 6 others v County Assembly of Kisumu & 3 others [2018] KEELRC 1359 (KLR)

Employment and Labour Relations Court
31 July 2018
MNMathews N. Nduma
3,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Employment Court quashed the unlawful removal of County Public Service Board members because the County Assembly skipped mandatory constitutional and statutory procedures.

What this practically means

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Executive summary

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The Petitioners, members of the Kisumu County Public Service Board, petitioned the Employment and Labour Relations Court at Kisumu alleging that the Respondents were attempting to unlawfully remove them from office before the expiry of their term, in violation of Articles 251(1) and 236 of the Constitution and section 58(5) of the County Government Act. The County Assembly had invited public complaints, formed an ad hoc committee, and adopted its report on 6th December 2017, leading to removal letters dated 7th December 2017. The Respondents maintained that the procedure adopted was lawful, relying on section 58(5), the Assembly's standing orders, and section 51(1) of the Interpretation and General Provisions Act. The court held that there was no iota of evidence demonstrating compliance with section 58(5) read with Article 251: no genuine petition by a member of the public was established, no evidence showed the 75% voting threshold was attained, and the Petitioners were not properly notified or given sufficient opportunity to defend themselves, failing the constitutional test of procedural fairness under Articles 47 and 50. The court also noted that the committee's proceedings proceeded in disregard of an interim injunction issued on 9th October 2017. The petition was allowed. The court declared the committee's information-gathering, its report and its adoption, and the removal letters and all consequential acts of the 2nd, 3rd and 4th Respondents null and void or illegal, issued orders of certiorari quashing the report and removal letters, and ordered payment of all withheld salaries and allowances with interest.

Key legal issues

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01

Compliance with the statutory and constitutional procedure for removal of County Public Service Board members

Holding

The Respondents failed to demonstrate compliance with section 58(5) of the County Government Act and Article 251 of the Constitution; the removal was unlawful

Reasoning

The court found the replying affidavit of the interim clerk silent on how the removal process proceeded to conclusion, and no evidence of a genuine petition by a member of the public, no evidence of service of any petition on the Petitioners, and no evidence that the 75% voting threshold was met. Following Mundia Njeru Gateria, absence of evidence of compliance with section 58(5)(b) is fatal to the removal.

p. 5
02

Procedural fairness and fair hearing before the ad hoc committee and Assembly

Holding

The Petitioners were not properly notified and given sufficient opportunity to defend themselves; the Respondents failed the test of procedural fairness

Reasoning

The court adopted the Court of Appeal's elucidation that due process under Articles 47 and 50 is a constitutional imperative, not a privilege. The Petitioners received letters inviting them as witnesses rather than accused persons, and were condemned unheard by an assembly acting as complainant, investigator and judge.

p. 5
03

Effect of disregarding court orders during the removal process

Holding

Actions taken in total disregard of the interim injunction of 9th October 2017 were null and void ab initio and the resulting report and removal letters were quashed

Reasoning

Despite the interim injunction restraining the ad hoc committee, the committee proceeded as scheduled and issued a report. The court declared the collection of information, the report, its adoption, and all consequential actions by the other Respondents void and issued orders of certiorari to quash them.

p. 5

Legal principles established

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  • Members of a County Public Service Board may only be removed on the grounds in Article 251(1) of the Constitution and by a vote of not less than 75% of all members of the County Assembly, and this must be strictly proved
  • Due process and fair hearing are constitutional imperatives in removal/impeachment proceedings, not privileges
  • Impeachment or removal from office is a drastic step whose statutory procedural provisions must be strictly complied with

Court orders

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  1. 1.Declaration that the action of the 1st Respondent in proceeding to collect/receive information from the public in disregard of the court order of 9th October 2017 was null and void ab initio
  2. 2.Declaration that the adoption of the ad hoc committee's report by the 1st Respondent was null and void ab initio
  3. 3.Declaration that the 2nd, 3rd and 4th Respondents' issuance of removal letters dated 7th December 2017 was illegal, biased and void
  4. 4.Declaration that withholding, deducting or continuing to deduct the Petitioners' salaries and/or allowances is illegal
  5. 5.Declaration that any action to replace the Petitioners as members of the Kisumu County Public Service Board is illegal and void
  6. 6.Declaration that taking over the Petitioners' offices and duties under section 59 of the County Governments Act is illegal, with the 3rd and 4th Respondents jointly and severally liable
  7. 7.Order of certiorari quashing the ad hoc committee report dated 4th December 2017 and its adoption by the 1st Respondent on 6th December 2017
  8. 8.Order of certiorari quashing the removal letters dated 7th December 2017
  9. 9.Payment of all withheld salaries, allowances, claims and/or budget from December 2017 with interest till payment in full
  10. 10.Refusal of stay of proceedings pending appeal of the ruling of 22nd February 2018

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 19, 20, 21, 22, 23, 27(1),(2),(4),(5), 28, 41(1),(2), 43, 47(1),(2), 48, 50, 185, 236, 251(1), Chapter Six
  • County Government Actsections 58(5), 58(5)(b), 59
  • Employment Actsection 45
  • Interpretation and General Provisions Act, Cap 2section 51(1)
  • County Assembly of Kisumu Standing Orderssections 196 and 197

Cases cited (4)

  • Mundia Njeru Gateria v Embu County Government and 3 others
    [2015] eKLR
  • Hussein Roba Boru v County Government of Isiolo & 2 others
    [2015] eKLR
  • Trishul Vijay Chohan v Mitch Menezes & 3 others
    (2018) eKLR
  • County Assembly of Kisumu and 2 Others v Kisumu County Assembly Service Board and 6 others
    [2015] eKLR
Jurisdiction invoked
Articles 1, 2, 19-23, 27, 28, 41, 43, 47, 48, 50, 185, 236 and 251 of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction of the ELRC)

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, "Nashon Wilson Oguya & 6 others v County Assembly of Kisumu & 3 others [2018] KEELRC 1359 (KLR)", Case Analysis (2018). Petition (Kisumu ELRC, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1359/eng@2018-07-31

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