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ELRCDismissedPetition dated 29th March, 2023· [2023] KEELRC 2903 (KLR)

Onyango v County Assembly of Siaya & 2 others (Petition E012 of 2023) [2023] KEELRC 2903 (KLR)

Environment and Land Court / High Court of Kenya at Kisumu (first-instance constitutional petition)
16 November 2023
CBC. N. Baari
4,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The High Court upheld a Siaya County official's impeachment because the county followed the required removal procedure and gave her a fair hearing.

What this practically means

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Executive summary

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The Petitioner, formerly the Siaya County Executive Committee Member in charge of Water, Sanitation, Environment, Climate Change and Natural Resources, challenged her removal by impeachment through a petition dated 29th March 2023. She sought declarations that the process violated Articles 10, 47, 50 and 196 of the Constitution and the County Governments Act and the Assembly Standing Orders, certiorari to quash the dismissal, damages and reinstatement. She complained that she was denied witness statements (notably that of Henry Juma, recorded a day before her hearing), denied cross-examination of a witness, denied the Select Committee report before debate, and that the allegations were unsubstantiated. The Respondents maintained that she received notice on 17th March 2023, filed written submissions, appeared before the Select Committee with her advocate, was heard in the House, and that the Assembly's resolution and the Governor's dismissal letter of 30th March 2023 followed Section 40 of the County Governments Act. The 3rd Respondent further urged separation of powers and that the docket had since been filled by Prof. Jacqueline/Jackline Oduol. The court held it had supervisory jurisdiction under Article 165(6) over the impeachment despite separation of powers, but found meticulous compliance with Section 40(3), no violation of Articles 47 and 50, and held the Petitioner validly removed. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the impeachment process violated the Petitioner's rights to fair hearing and fair administrative action

Holding

No violation found; the Respondents meticulously adhered to Section 40(3) of the County Government Act and accorded the Petitioner notice, a hearing with counsel, and an opportunity to respond

Reasoning

The court traced the chronology: notice on 17/3/2023, public participation via newspaper advert, written submissions filed, hearing before the Select Committee with her advocate on 24/3/2023, Assembly adoption and Governor's dismissal letter of 30th March 2023. The court held the process complied with Section 40 and Articles 47 and 50, finding no denial of fair hearing despite claims of withheld witness statements and denial of cross-examination.

p. 11
02

Whether the court may interrogate the impeachment given separation of powers

Holding

Yes, under the supervisory jurisdiction of Article 165(6), but courts should not intrude into legislative internal procedures unless unconstitutional

Reasoning

Relying on Martin Nyaga Wambora, County Assembly of Kisumu and the South African De Lille dictum, the court held that while no institution is immune from judicial scrutiny, courts have no jurisdiction to interfere where the legislative authority acted within constitutional confines; here, due procedure was followed so no interference was warranted.

p. 9

Legal principles established

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  • Under Article 165(6) the High Court has power to interrogate an impeachment of a CECM notwithstanding separation of powers
  • An officer facing possible removal from office must be accorded due process

Court orders

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  1. 1.The Petition is dismissed with no orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 47, 50, 165(6), 196, 236(b)
  • County Governments Act, 2012Sections 31(a), 40(1), 40(2), 40(3), 40(5)(a), 40(6), 40(6)(b)
  • County Assembly of Siaya Standing OrdersNos. 73, 74(1)(b), 74(2)
  • Evidence Actstandard of proof (as submitted by Petitioner)

Cases cited (6)

  • Martin Nyaga Wambora & others v. The Speaker of the Senate & others
  • Republic v. Firearm Licensing Board & Another Ex parte Jimi Wanjigi
    (2019) eKLR
  • Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another
    [2022] eKLR
  • County Government of Nyeri & another versus Cecilia Wangechi Ndungu
    Civil Appeal 2 of 2015
  • The Speaker of the National Assembly and Patricia De Lille (MP) & another
    Case No. 297/98
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    (2015) eKLR
Jurisdiction invoked
Article 165(6) of the Constitution of Kenya (supervisory jurisdiction)

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, "Onyango v County Assembly of Siaya & 2 others (Petition E012 of 2023) [2023] KEELRC 2903 (KLR)", Case Analysis (2023). Petition dated 29th March, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2903/eng@2023-11-16

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