Samwel Onyango Okelo & another v County Government of Kisumu & another [2021] KEELRC 2247 (KLR)
The bottom line
#Kenya's Employment Court ruled Kisumu County illegally removed two City Board members without notice or a hearing, quashed the termination letters, and ordered them back in office.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the petitioners' appointments violated Articles 27, 41 and 47 of the Constitution
Yes - the respondents terminated the appointments without notice or hearing, violating the rights to equality, fair labour practices and fair administrative action
The respondents relied on the Urban Areas and Cities (Amendment) Act, 2019 which imposed new qualification criteria, and on the Attorney General's advisory opinion that unqualified members cease to hold office by operation of law. The court held the Amendment Act did not automatically end subsisting terms; removal required an inclusive verification process. The respondents afforded the petitioners no notice, hearing or fair administrative procedure, breaching Articles 27, 41 and 47.
The effect of a decision made in breach of natural justice
The decision removing the petitioners from the board is void, following Ridge v Baldwin
Counsel invoked and the court adopted the principle in Ridge v Baldwin that a decision reached without observance of natural justice is void. Since the petitioners' removal occurred without any hearing or show-cause process, the termination letters dated 28/8/2019 were a nullity and were quashed.
Whether the respondents' reply established an employer-employee relationship
The respondents asserted no employer-employee relationship, the petitioners being part-time board members receiving allowances under the Urban Areas and Cities Act, 2011
The respondents deposed that the petitioners were appointed part-time under Section 13 of the Urban Areas and Cities Act, 2011 with County Assembly approval, and received allowances only. The court nonetheless found the removal process constitutionally infirm because fair labour practices and fair administrative action protections applied regardless.
Legal principles established
#- A decision made without adherence to the principles of natural justice is void
- An amendment Act removing qualification criteria does not automatically terminate subsisting board members' terms; a verification process involving affected members is required before removal
- An advisory opinion cannot nullify or displace constitutional guarantees of due process, fair labour practices and fair administrative action
Court orders
#- 1.The decision contained in the letters dated 28/8/2019 directed to the petitioners was quashed for violating Articles 27, 41 and 47 of the Constitution
- 2.The petitioners to remain in office as members of the Kisumu County City Board as appointed by letters dated 9th July 2018 until the full term expires and/or they are lawfully removed following due process
- 3.The respondents to pay the costs of the suit
- Jurisdiction invoked
- Articles 23, 27, 41 and 47 of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Onyango Okelo & another v County Government of Kisumu & another [2021] KEELRC 2247 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition filed 3/9/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2247/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.