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ELRCPartially AllowedPetition No 46 of 2018· [2020] KEELRC 208 (KLR)

Daniel Omondi Ogada & 6 others v County Assembly of Homa-Bay & 2 others [2020] KEELRC 208 (KLR)

Employment and Labour Relations Court
15 October 2020
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided Homa-Bay County Assembly's attempt to remove Public Service Board members because it used an internal motion instead of the constitutionally required petition.

What this practically means

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Executive summary

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Seven members of the Homa-Bay County Public Service Board petitioned the Employment and Labour Relations Court after the County Assembly of Homa-Bay, acting on a motion by one of its members, investigated their alleged failure to submit statutory reports, adopted a committee report and recommended their removal to the County Executive, which issued a report dated 25th June 2018 seeking their removal. The petitioners argued that removal could only be triggered by a petition presented under Article 251(2) of the Constitution and section 58(5) of the County Governments Act, and that the Assembly's unilateral process violated their rights to fair administrative action and a fair hearing. The respondents contended the process was lawful and procedural. The court framed three issues: the legality of the Assembly's recommendation, the alleged rights violations, and entitlement to relief. Relying on Mundia Njeru Gateria and Hussein Roba Boru, the court held that removal may only commence upon presentation of a petition from outside the Assembly, and that an internal notice of motion cannot substitute for it. The court also expressed doubt that Article 251(2) delegates the National Assembly's removal function to County Assemblies, holding that a County Assembly cannot dissolve a County Public Service Board, whose members' six-year tenure is protected. It found violations of Articles 47, 50(1) and 236(b). The petition was allowed: the Assembly's removal process was declared unconstitutional, null and void; certiorari issued quashing the committee's 25th June 2018 report; and the 1st respondent was ordered to pay costs.

Key legal issues

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01

Whether the County Assembly could lawfully commence the removal of the petitioners without a petition presented under Article 251(2)

Holding

The Assembly's internal motion could not substitute for the petition required by Article 251(2); the process was unconstitutional and unlawful ab initio

Reasoning

Article 251(2) contemplates a petition presented by a person desiring removal, setting out the alleged facts. The framers intended such complaints to originate outside the Assembly, as there is no provision for internal petitions under the standing orders. Commencing removal via an internal motion contravened Article 251(2) and section 58(5) of the County Governments Act and breached natural justice by making the Assembly both complainant and judge.

p. 4
02

Whether the petitioners' rights under Articles 47, 50(1) and 236 were violated

Holding

Yes - the petitioners were subjected to an un-procedural and unlawful process unknown to the constitution

Reasoning

Following the Court of Appeal's reasoning in the Kisumu County Assembly case and Cecilia Wangechi Ndungu, due process in removal proceedings must be strictly complied with. Subjecting the petitioners to a process commenced without the constitutional petition denied them fair administrative action and a fair hearing, contrary to Articles 47, 50(1) and 236(b)/(3).

p. 4
03

Whether a County Assembly has authority to discipline or remove members of a County Public Service Board

Holding

No - the 2nd and 3rd respondents have no authority under the constitution to discipline or remove the petitioners

Reasoning

The court doubted that Article 251(2) delegates the National Assembly's role to County Assemblies. The Board is a body corporate with perpetual succession whose members hold six-year protected terms as holders of independent office. Only the National Assembly may, on lawful grounds, disband such a board.

p. 5

Legal principles established

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  • Removal of a member of a County Public Service Board may only be commenced by presentation of a petition to the County Assembly under Article 251(2) of the Constitution; an internal notice of motion by a member of the Assembly cannot substitute for such a petition
  • Removal of members of a County Public Service Board is on the grounds in Article 251(1) of the Constitution and only by a vote of not less than 75% of all members of the County Assembly under section 58(5)(b) of the County Governments Act
  • A County Assembly cannot dissolve or disband a duly constituted County Public Service Board; the Board is a body corporate whose members' six-year term is protected
  • A member of a commission or holder of an independent office may only be removed under Article 251(2) by the National Assembly and not by any County Assembly
  • Requiring that the removal process be originated by an independent person outside the Assembly is a constitutional safeguard against innate bias under the rules of natural justice

Court orders

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  1. 1.Declaration that the action by the 1st respondent in initiating the process of removal of the petitioners as members of the Homa-Bay County Public Service Board is unconstitutional, unlawful, null and void
  2. 2.Declaration that the 1st respondent violated the constitutional rights of the petitioners under Articles 47, 50(1) and 236(b) of the Constitution of Kenya 2010
  3. 3.Declaration that the 2nd and 3rd respondents have no authority under the constitution to discipline or remove the petitioners from office
  4. 4.Order of judicial review in the nature of certiorari removing to the Employment and Labour Relations Court and quashing the 1st respondent's report by the Administration and Security Committee dated 25th June 2018 looking into the conduct of the Chairperson, Secretary and members of Homa-Bay County Public Service Board
  5. 5.The 1st respondent to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 48, 50, 50(1), 159(2)(d), 185(3), 236(b), 236(3), 251(1), 251(2)
  • County Governments Act, 2012Sections 58(5), 59(1)(f), 59(5), 74
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Mundia Njeru Gateria vs Embu County Government
  • Hussein Roba Boru vs County Government of Isiolo and 2 others
    (2015) eKLR
  • County Assembly of Kisumu and 2 others vs Kisumu County Assembly Service Board and 6 others
    (2015) eKLR
  • County Government of Nyeri and another vs Cecilia Wangechi Ndungu
Jurisdiction invoked
Article 162(2) of the Constitution - jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (inferred from the court's identity); the court also invoked Article 159(2)(d), Article 48 and Section 18 of the Civil Procedure Act for online delivery of judgment

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, "Daniel Omondi Ogada & 6 others v County Assembly of Homa-Bay & 2 others [2020] KEELRC 208 (KLR)", Case Analysis (2020). Petition No 46 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/208/eng@2020-10-15

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