Nashon Wilson Oguya & 6 others v County Assembly of Kisumu [2018] KEELRC 2436 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear disputes over county board members' removal, but let their contempt bid fail because their interim orders had expired.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a petition challenging County Assembly proceedings against Public Service Board members
The preliminary objection fails; the court has jurisdiction because the dispute arises from an employment relationship and raises fundamental rights and freedoms
The court relied on Nick Githinji Ndichu, approved in the County Assembly of Kisumu case, holding that Board members are employees of the County Government including the County Assembly. Employment rights are Bill of Rights protections under Article 41, within the Industrial Court's province per the Court of Appeal in JSC v Gladys Boss Shollei. The petitioners also raise constitutional rights under Articles 1, 2, 19, 20, 21, 22, 23, 43, 47, 48, 50, 185 and 251, anchoring jurisdiction.
Whether the Respondents were in contempt of the interim orders
The contempt application is dismissed; the petitioners failed to prove willful disobedience
The burden under sections 107, 108, 109 and 112 of the Evidence Act was not discharged. The order issued on 9th October 2017 and extended on 1st November 2017 was not extended on 5th December 2017 because petitioners' counsel failed to apply; hence when the adhoc committee sat, reported and the Assembly adopted the report on 6th–7th December 2017, there was no order capable of enforcement.
Whether the petition may be amended to join the County Government of Kisumu, the Governor and the Acting County Secretary
The amendment is granted; the draft Amended Petition is deemed duly filed upon payment of fees
The application was not opposed by way of a replying affidavit, and the court granted it unopposed. The joinder is relevant since the impugned removal letters were written by the intended 2nd–4th respondents, and the employment relationship is with the County Government.
Legal principles established
#- There exists an employment relationship between members of a County Public Service Board and the County Government, vesting the Employment and Labour Relations Court with jurisdiction over disputes concerning their removal.
- Interim orders must be specifically extended on the dates fixed; otherwise they lapse and cease to be valid for any meaningful enforcement.
Court orders
#- 1.The Preliminary Objection by the Respondent on the Jurisdiction of the court is dismissed.
- 2.The application to find the Respondents guilty of contempt has no merit and is dismissed.
- 3.The application to amend the petition to join The County Government of Kisumu as 2nd Respondent, The Governor of Kisumu County as 3rd Respondent and The Kisumu County Secretary as 4th Respondent is granted, and the Draft Amended Petition filed on 23rd January 2018 is deemed duly filed upon payment of requisite fees.
- 4.The Interim orders issued on 11th December 2018 and extended on 22nd February 2018 are confirmed and duly extended until the petition is heard and determined.
- Jurisdiction invoked
- Articles 41 and 162(2) of the Constitution as read with Section 12 of the Industrial Court Act, 2011 (employment and labour rights within the province of the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nashon Wilson Oguya & 6 others v County Assembly of Kisumu [2018] KEELRC 2436 (KLR)", Case Analysis (2018). Petition No 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2436/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.