Fredrick Odero v Governor Homabay County & 3 others [2020] KEELRC 1418 (KLR)

Employment and Labour Relations Court (court not expressly named in the judgment)

5 March 2020

MNMathews N. Nduma

1,031 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A removed Homa Bay county official lost his bid to block impeachment because he went to court before the legal removal process was finished.

What this practically means

Executive summary

The applicant, a County Executive Committee Member for Tourism, Sports, Youth, Culture, Gender and Social Services in Homa Bay County, filed a Notice of Motion on 20th May 2019 seeking a conservatory order staying the resolution of the County Assembly of Homa Bay passed on 17th May 2019 removing him from office, pending the hearing of his petition. He contended that the impeachment process violated his rights to fair administrative action, fair hearing and equal protection of the law, and that he was victimised for upholding Article 10 and Chapter Six of the Constitution. The Clerk of the Assembly, Daniel Odhiambo Kando, opposed the application, deposing that the removal followed a motion of 23rd April 2019, investigation by a select committee before which the applicant appeared on 25th and 26th April 2019, and a majority vote supported by a third of members under Standing Order 62(2), on grounds of incompetence, gross misconduct, abuse of office and gross violation of the Constitution. The court framed one issue: whether the applicant had satisfied the prerequisites for conservatory orders. Holding Section 40(6) of the County Governments Act mandatory, the court found the application premature, as the Speaker and Governor had no discretion but to implement the resolution. Applying the Supreme Court's test in Gitirau Peter Munya v Dickson Mwenda Kithinji, it further found no prima facie case given the public interest. The application was dismissed with costs in the cause on 5th March 2020.

Key legal issues

Whether conservatory orders could issue to stay an impeachment resolution

Holding

No - the application was premature and misconceived

Reasoning

Section 40(6) of the County Governments Act, 2012 obliges the Speaker to deliver the impeachment resolution to the Governor and the Governor to dismiss the CECM. Respect for separation of powers requires the legislative process to run its course before judicial intervention. Once the process is complete, the applicant must establish a prima facie case that fair administrative action, fair hearing rights or the mandatory impeachment procedure were violated.

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Test for grant of conservatory orders

Holding

The inherent merit of the case, public interest, constitutional values and proportionate magnitudes, per the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji

Reasoning

The court adopted the Supreme Court's formulation in Munya distinguishing conservatory orders from interlocutory injunctions. Applying that test, it weighed the stated grounds for impeachment (incompetence, gross misconduct, abuse of office, gross violation of the Constitution), the public outcry that preceded the removal, and the public interest in the functioning of the county executive, and concluded the threshold was not met.

p. 2

Legal principles established

Section 40(6) of the County Governments Act, 2012 is mandatory; the Speaker and Governor have no discretion but to implement an impeachment resolution, and an aggrieved party may only approach the court upon completion of that process
Conservatory orders are public-law orders granted on the inherent merit of a case, bearing in mind the public interest and constitutional values, and are not tied to interlocutory-injunction tests

Court orders

1.The Notice of Motion application for conservatory orders staying the resolution of the County Assembly of Homa Bay was dismissed
2.Costs of the application awarded to the respondents in the cause

Authorities

Legislation

County Governments Act, 2012Section 40(6) (and 40(5)(b), 40(6)(b))
Constitution of Kenya, 2010Article 10; Chapter Six
Homa Bay County Assembly Standing OrdersStanding Order No. 62(2)

Cases cited (1)

Gitirau Peter Munya vs Dickson Mwenda Kithinji and 2 others
(2014) eKLR

Jurisdiction invoked: Original constitutional petition jurisdiction (application for conservatory orders pending petition); removal of a County Executive Committee member under Section 40 of the County Governments Act, 2012

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fredrick Odero v Governor Homabay County & 3 others [2020] KEELRC 1418 (KLR)", Case Analysis (2020). Petition No 15 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1418/eng@2020-03-06

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