Daniel Omondi Ogada & 6 others v County Assembly of Homa-Bay & 2 others [2020] KEELRC 208 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the County Assembly could lawfully commence the removal of the petitioners without a petition presented under Article 251(2)
The Assembly's internal motion could not substitute for the petition required by Article 251(2); the process was unconstitutional and unlawful ab initio
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.
Whether the petitioners' rights under Articles 47, 50(1) and 236 were violated
Yes - the petitioners were subjected to an un-procedural and unlawful process unknown to the constitution
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).
Whether a County Assembly has authority to discipline or remove members of a County Public Service Board
No - the 2nd and 3rd respondents have no authority under the constitution to discipline or remove the petitioners
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.
Legal principles established
#- 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
#- 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.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.Declaration that the 2nd and 3rd respondents have no authority under the constitution to discipline or remove the petitioners from office
- 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.The 1st respondent to pay the costs of the petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.