Onyango v Speaker County Assembly of Migori & 2 others (Cause E088 of 2023) [2024] KEELRC 376 (KLR)
The bottom line
#Kenya's Employment Court blocked Migori County Assembly from firing its Clerk over corruption charges, ruling he stays in office until his criminal case ends.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction / doctrine of exhaustion
The motion does not offend the doctrine of exhaustion; the court has jurisdiction because the PSC cannot grant the interlocutory injunctive relief sought.
Sections 77 of the County Government Act and 87(2) of the Public Service Commission Act require appeals to the PSC in the first instance for county public service disputes. However, the court must assess the adequacy of the alternative remedy. Since the applicant seeks interlocutory injunctive protection of his employment contract, a remedy the PSC cannot grant, the PSC is not the appropriate forum and the suit is properly before the court.
Whether an injunction can issue against a County Government
Yes. No statutory provision protects county governments from injunctive orders; Section 16(2) of the Government Proceedings Act applies only to the national government.
Relying on Lawrence Ogaro Onyiego and James Muigai Thungu, the court held that the County Government Act contains no protection from injunctions and the Government Proceedings Act was never amended to cover devolved governments. The protection given to the national government under Section 16 read with Order 29 Rule 2(2)(d) of the Civil Procedure Rules does not apply to county governments.
Threshold for interlocutory injunction
The Applicant established a prima facie case with probability of success and irreparable injury under the Giella test.
The Applicant was under a statutory suspension under Section 62 of the Anti-Corruption and Economic Crimes Act, which requires him to hold office until his criminal case concludes. The Act is silent on what happens when cases exceed the 24-month proviso, and the delay cannot be blamed on the Applicant. Revoking his appointment would contravene the rule of law and presumption of innocence under Article 10 of the Constitution.
Legal principles established
#- Disputes arising from county government public service must first be taken on appeal to the Public Service Commission, but where the PSC cannot grant the relief sought, it is not an adequate alternative remedy and does not oust the court's jurisdiction.
- There is no absolute bar to granting injunctions against county governments; the protection in Section 16 of the Government Proceedings Act does not extend to county governments.
- A public officer suspended under Section 62 of the Anti-Corruption and Economic Crimes Act remains in office until the criminal case is concluded; delay beyond the 24-month proviso cannot be visited upon the officer, and dismissal in such circumstances offends the presumption of innocence.
Court orders
#- 1.Pending the hearing and determination of the Claim, an order of injunction restraining the Respondents from implementing the Resolution of the County Assembly of Migori dated 14th December 2023 revoking the appointment of the Claimant as Clerk of the County Assembly of Migori
- 2.The Applicant/Claimant is granted leave to amend his Memorandum of Claim by adding the County Assembly of Migori as the 4th Respondent
- 3.The draft amended Memorandum of Claim deemed as duly filed upon payment of the requisite Court filing fee
- 4.The costs of the application shall be in the cause
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Constitution; Motion under Order 51 Rule 1, Order 8 Rule 3(1), Order 1 Rule 10 and Order 40 of the Civil Procedure Rules (2010), Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Speaker County Assembly of Migori & 2 others (Cause E088 of 2023) [2024] KEELRC 376 (KLR)", Case Analysis (2024). Cause No E088 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/376/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.