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ELRCDismissedCause No. 85 of 2019 consolidated with Petition 32 of 2019· [2019] KEELRC 197 (KLR)

George Onyango Oloo v Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 others ( Interested Parties) [2019] KEELRC 197 (KLR)

Employment and Labour Relations Court
10 December 2019
MNMathews N. Nduma
4,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Employment Court upheld the impeachment of Kisumu's Assembly Speaker, ruling the removal procedure was properly followed and he must return the official vehicle.

What this practically means

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Executive summary

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Cause No. 85 of 2019 was consolidated by consent with Petition 32 of 2019 concerning the impeachment and removal of Hon. George Onyango Oloo as Speaker of the County Assembly of Kisumu on 18th September 2019, following ten allegations including incompetence, abuse of power and pending corruption charges in Milimani Anti-Corruption Case No. 26 of 2019 relating to his tenure as Chairman of the Lake Basin Development Authority. The petitioner sought declarations that his removal was unconstitutional, reinstatement, damages under Article 23, restoration of benefits, and orders restraining the election of a new Speaker. The respondents, through the Acting Speaker Elisha Jack Oraro and Leader of the Majority Kenneth Onyango, maintained that the removal followed Section 11 of the County Governments Act and Standing Order 61, with notice signed by 29 members and a resolution passed by 42 members constituting 75% of the Assembly. The court framed three issues: lawfulness of the removal, return of Assembly assets, and entitlement to reliefs. Applying the four conditions in Nick Githinji Ndichu, it found all conditions precedent were met: formal notice by at least a third of members, opportunity to respond, presiding member under Section 9(4), and a 75% resolution. The petitioner, who bore the burden of proving he was blocked from the plenary, failed to discharge it, having acknowledged notice and promised to attend. Guided by public interest considerations and the Mumbi Ngugi line of authority on persons facing serious corruption charges, the court declined reinstatement. The petition was dismissed; the petitioner was directed to return the official vehicle, and the Assembly to pay accrued terminal benefits less liabilities, with each party bearing their own costs.

Key legal issues

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01

Whether the removal of the Speaker was lawful and procedural

Holding

The removal was lawful and procedural; all four conditions precedent to impeachment were satisfied.

Reasoning

The court applied the four-step test from Nick Githinji Ndichu: formal notice signed by at least a third of members (29 members signed), service and invitation to respond by email, proceedings presided over by a member elected under Section 9(4) of the County Governments Act, and a resolution passed by 42 members constituting 75% of the membership. The petitioner acknowledged the notice publicly but failed to attend the plenary session, and could not prove he was blocked. The Hansard record was unchallenged and treated as proven fact.

p. 7
02

Whether the petitioner proved denial of fair hearing under Articles 47 and 50

Holding

The petitioner failed to discharge the burden of proving he was prevented from attending the hearing.

Reasoning

The petitioner bore the primary onus on a balance of probabilities to prove he was blocked from attending the plenary session. He had been served the day before by email, acknowledged the notice at a press conference, and promised to attend at 2.30 p.m. but did not. The court held the respondents could not be faulted for his non-attendance, so the alleged violation of Articles 47 and 50 was not established.

p. 6
03

Whether reinstatement was an appropriate remedy given pending corruption charges

Holding

Reinstatement was refused as contrary to public interest.

Reasoning

While the petitioner enjoyed the presumption of innocence, the court followed the Mumbi Ngugi line of authority holding that allowing a person charged with serious corruption to discharge public duties offends public policy. The court also considered the balance of convenience in favour of public interest, citing the Munya decision of the Supreme Court. However, the court noted that absent statutory or constitutional guidelines, strict adherence to public interest considerations governed.

p. 7

Legal principles established

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  • Impeachment procedural provisions must be strictly complied with and a person facing removal must be afforded a fair opportunity of answering the case against him.
  • Four conditions must be met before impeaching a County Speaker: formal notice signed by at least a third of members, opportunity to respond, presiding member elected under Section 9(4), and a 75% resolution.
  • Conservatory orders and public-office reliefs must weigh public interest, constitutional values and proportionate magnitudes.
  • A person charged with serious corruption should not be allowed to discharge duties of a public post pending trial, as this offends public policy.

Court orders

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  1. 1.The petition is dismissed for lack of merit.
  2. 2.The Petitioner to release forthwith to the 2nd Respondent motor vehicle registration no. 42C9039A – Toyota Land Cruiser.
  3. 3.The 2nd Respondent to pay forthwith any accrued terminal benefits due and owing to the Petitioner less any liabilities owed by the Petitioner to the 2nd Respondent.
  4. 4.Each of the parties to meet their own costs of the consolidated suit.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2, 10, 21, 23, 25, 27, 28, 41, 47, 50, 73, 178(1), 178(2), 232, 259
  • County Governments ActSections 9(4), 11(1)-(4)
  • County Assembly Service Act
  • County Assembly of Kisumu Standing OrdersStanding Orders 13(1), 58, 61(1)-(5), 154
  • Employment Act
  • Fair Administrative Action Act
  • Public Finance Management Act No. 18 of 2012Section 147
  • Anti-Corruption and Economic Crimes ActSection 62

Cases cited (6)

  • Nick Githinji Ndichu –vs- County Assembly of Kiambu and 3 others
    Nairobi Appeal No. 18/2016
  • County Assembly of Kisumu and 2 others –vs- Kisumu County Assembly Service Board and 6 others
  • R. Ravichadran, vs the additional commissioner of police
  • Gitirau Peter Munya -v- Dickson Mwenda Kithinji and 2 others (2014) eKLR
    (2014) eKLR
  • Selvajaran –vs- Race Relations Board
  • Republic vs George Onyango Oloo and 17 others
    Milimani CMC Anti-corruption case no. 26/2019
Jurisdiction invoked
Articles 23, 47, 50 and 178 of the Constitution of Kenya 2010; County Governments Act; County Assembly Service Act; Employment Act; Fair Administrative Action 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, "George Onyango Oloo v Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 others ( Interested Parties) [2019] KEELRC 197 (KLR)", Case Analysis (2019). Cause No. 85 of 2019 consolidated with Petition 32 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/197/eng@2019-12-10

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