Daniel Omondi Ogada & 6 others v County Assembly of Homabay & 2 others [2019] KEELRC 2446 (KLR)
The bottom line
#A Kenyan court stopped Homa Bay County Assembly from removing Public Service Board members, holding they can only be removed through strict constitutional process.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders should issue restraining removal of County Public Service Board members
Yes; on the inherent merit of the case and public interest, the conservatory orders were confirmed pending hearing of the petition.
The court, guided by Gatirau Peter Munya, held that at interlocutory stage it should not pronounce on merits but considered the public interest in how independent institutions deal with each other and the proportionate implications of removing members of an independent body en masse on allegations not made in a petition by a party independent of the County Assembly.
Proper constitutional and statutory procedure for removal of County Public Service Board members
Removal requires a petition by an independent person on Article 251(1) grounds and a 75% vote under section 58(5)(b) of the County Government Act; the Assembly's own internal motions and committee process did not satisfy this.
Relying on Mundia Njeru Gateria and Hussein Roba Boru, the court held removal must be grounded on Article 251(1) grounds, initiated by petition, with due process strictly complied with; the Assembly's committee investigations and report of 25th June 2018 fell short of this threshold, engaging Articles 47 and 50 rights to be heard.
Separation of powers and independence of the County Public Service Board
The Board is independent and cannot be supervised or removed by the executive; the Assembly's oversight must be exercised in accordance with the Constitution.
The court reiterated that the doctrine of separation of powers limits each arm of government; Assemblies' oversight roles must be discharged constitutionally, and impeachment-type provisions must be strictly complied with per the County Assembly of Kisumu case.
Legal principles established
#- Members of a County Public Service Board can 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 under section 58(5)(b) of the County Government Act, 2012.
- The removal process must be originated by a petition presented to the County Assembly by a person separate and independent of the Assembly.
- Conservatory orders are public-law orders granted on the inherent merit of the case, considering public interest, constitutional values and proportionate magnitudes, not private-law irreparable harm tests.
Court orders
#- 1.The application is granted with costs
- 2.Conservatory orders confirmed: the Public Service Board, Homa Bay County as presently constituted remains in office until the petition is disposed of and/or the members' contracts of service come to an end
- Jurisdiction invoked
- Constitutional petition seeking conservatory orders under Article 23 and Articles 251(1)&(2) and 47, 50 of the Constitution as read with section 58(5) of the County Government Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Omondi Ogada & 6 others v County Assembly of Homabay & 2 others [2019] KEELRC 2446 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd July, 2018 (within a constitutional petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2446/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.