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ELRCDismissedConstitutional Petition (transferred from Kisumu High Court)· [2022] KEELRC 607 (KLR)

George Ochieng v Governor, County Government of Siaya & 3 others; Elizabeth A Adhiambo & 7 others (Interested Parties) [2022] KEELRC 607 (KLR)

Employment and Labour Relations Court
2 March 2022
RSRadido Stephen
2,869 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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Kenya's employment court confirmed a county governor can resubmit rejected CEC nominees and reshuffle executives without fresh assembly vetting.

What this practically means

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Executive summary

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The Petitioner challenged the appointment of six persons as County Executive Committee members of the Siaya County Government, contending that the Governor unlawfully resubmitted their names after the County Assembly had rejected the initial nominations and that the High Court in Brenda Achieng Ongalo had upheld that rejection. He sought declarations of unconstitutionality, certiorari to quash the appointment, approval and Committee of Appointments report, and prohibition barring the nominees from assuming office. The matter was transferred from the High Court to this Court, which directed it be heard on the merits. The Petition raised four issues: the legality of the resubmission, res judicata, fresh vetting upon redeployment, and compliance with section 35(3) of the County Governments Act. The Court held that the High Court's observation against resubmission was obiter and could not found a finding of illegality, since the High Court had expressly declined to determine the resubmission question because the earlier Petition had not been amended. Res judicata did not arise for the same reason. The Court found no statutory requirement for fresh vetting or fresh public participation when a CEC member is re-assigned to a new docket; the oath of office is not docket-specific. The question of section 35(3) compliance became moot after the County Assembly rescinded its earlier rejection on 30 May 2018. The Petition was dismissed with each party bearing its own costs, the Court noting the public-interest nature of the Petition and the Respondents' failure to file substantive responses.

Key legal issues

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01

Authority to resubmit rejected nominees

Holding

The Governor was not barred from resubmitting the names of the Interested Parties; the contrary view rested only on obiter remarks

Reasoning

The High Court in Brenda Achieng Ongalo declined to determine the legality of the resubmission because the Petition had not been amended. Its observation that a Governor could not resubmit rejected names unless the grounds for rejection ceased to exist was obiter. This Court held such remarks cannot, without more, establish that the Governor lacked authority to resubmit the names.

p. 5
02

Res judicata

Holding

The Petition was not res judicata as the resubmission issue was not before the High Court

Reasoning

The Speaker and County Assembly raised res judicata in Grounds of Opposition but filed no submissions. The Court held that res judicata could only have arisen had the earlier Petition been amended to include the resubmission of names as an issue in dispute, which it was not.

p. 5
03

Fresh vetting upon redeployment

Holding

No fresh vetting or fresh public participation is required when a CEC member is re-assigned to a new docket

Reasoning

The County Governments Act makes no express provision for fresh vetting on redeployment, and the Petitioner cited no such provision. The oath of office is not docket-specific, so the oath argument fails. Section 30(2)(b) was held inapplicable as it concerns delegation of state functions by the President to a Governor. The Governor may reshuffle his executive as he sees fit.

p. 5
04

Section 35(3) County Governments Act requirements

Holding

The question became moot after the County Assembly rescinded its earlier decision rejecting the names

Reasoning

Although the Vetting Committee declined to admit the resubmitted names of Eng. Adrian Ouma and Dismas Omondi Wakla, the County Assembly passed a Motion on 30 May 2018 rescinding the decision to reject the names, rendering the question of the nominees' compliance with section 35(3) moot.

p. 6

Legal principles established

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  • Obiter remarks in a judgment cannot found a finding that a Governor lacked authority to resubmit rejected nominees
  • Res judicata does not arise where the issue was never incorporated in the earlier suit
  • No fresh vetting of a County Executive Committee member is required upon redeployment to a new docket

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2), 179, 179(1), 179(6)
  • County Governments Actsections 30, 30(2)(b), 34, 35, 35(3), 39
  • Public Appointments (County Assemblies Approval) Actsections 8, 10
  • Public Service (Values and Principles) Actsections 4, 5, 10
  • Siaya County Public Appointments (Approval) Act, 2014section 35

Cases cited (2)

  • Brenda Achieng Ongalo & 2 Ors v Speaker, County Assembly of Siaya & 3 Ors (2018) eKLR
    Kisumu High Court Constitutional Petition No. 24 of 2017
  • County Government of Nyeri & Ar v Cecilia Wangechi Ndungu (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (transferred from the High Court)

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, "George Ochieng v Governor, County Government of Siaya & 3 others; Elizabeth A Adhiambo & 7 others (Interested Parties) [2022] KEELRC 607 (KLR)", Case Analysis (2022). Constitutional Petition (transferred from Kisumu High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/607/eng@2022-03-02

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