Daniel Omondi Ogada & 2 others v County Assembly of Homabay & 2 others [2020] KEELRC 355 (KLR)
The bottom line
#A Kenyan court ruled that county public service board members can only be removed through a public petition and a 75% Assembly vote, quashing Homa Bay's irregular removal process.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the removal mechanism employed against county public service board members
The mechanism was faulty, unlawful and in violation of Articles 251(1) and (2) read with section 58(5)(b); no petition by a member of the public was presented to the Assembly.
Removal of county public service board members requires a petition presented in accordance with Article 251(1) and (2) and a 75% vote of the Assembly under section 58(5)(b). Here the process was initiated by a motion by a member of the Assembly rather than a public petition. The respondents alleged public petitions were received and presented for debate, but produced no Hansard or copies of the petitions, so the claim lacked evidential support.
Violation of fair administrative action and due process rights
The respondents violated the petitioners' rights under Articles 41(1), 47, 48, 50 and 236 of the Constitution.
Having found the removal mechanism unlawful, the court held that the attempted removal without due process contravened protections against victimisation and disciplinary action without due process (Article 236) and the rights to fair labour practices and fair administrative action and fair hearing. Reliance was placed on authority emphasising adherence to rules of natural justice where punitive consequences are in prospect.
Legal principles established
#- The only lawful mechanism for removal of county public service board members is a petition presented under Article 251(1) and (2) and removal by a 75% vote of the County Assembly under section 58(5)(b) of the County Governments Act.
- Public officers are protected against removal or disciplinary action without due process under Article 236 of the Constitution.
Court orders
#- 1.Declaration that the 1st respondent's authority to commence removal of the petitioners under Article 251 arises only upon a petition presented in accordance with Article 251(1) and (2) as read with section 58(5)(b) of the County Government Act, 2012
- 2.Declaration that the 2nd and 3rd respondents have no authority under the constitution and the law to discipline or remove the petitioners from office
- 3.Declaration that any action by the 2nd and 3rd respondents in advertising, shortlisting, selecting, appointing or purporting to replace the petitioners is illegal
- 4.Order of certiorari quashing the 1st respondent's report by the Administration and Security Committee dated 24th November 2019
- 5.Order of certiorari quashing the 3rd respondent's letter dated 26th November 2019 relieving the petitioners of their duties
- 6.Respondents directed to pay all arrear and future remuneration due to the petitioners
- 7.Costs of the petition to follow the event
- Jurisdiction invoked
- Articles 251(1) and (2) of the Constitution as read with Section 58(5)(b) of the County Governments Act, 2012; Employment and Labour Relations Court jurisdiction over county public service board members
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Omondi Ogada & 2 others v County Assembly of Homabay & 2 others [2020] KEELRC 355 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/355/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.