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ELRCAllowedCause No E088 of 2023· [2024] KEELRC 376 (KLR)

Onyango v Speaker County Assembly of Migori & 2 others (Cause E088 of 2023) [2024] KEELRC 376 (KLR)

Employment and Labour Relations Court
29 February 2024
2,901 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, Tom Opere Onyango, Clerk of the County Assembly of Migori, moved the court by notice of motion dated 18th December 2023 seeking an interlocutory injunction restraining the Respondents from implementing a resolution of the County Assembly dated 14th December 2023 revoking his appointment as Clerk, together with leave to add the County Assembly of Migori as 4th Respondent and to have the amended claim deemed filed. The Claimant had been on suspension since January 2021 under Section 62 of the Anti-Corruption and Economic Crimes Act following criminal charges. The Respondents opposed, arguing that the court lacked jurisdiction for failure to exhaust the appeal to the Public Service Commission, that injunctions cannot issue against a county government, that the Applicant's appointment lapsed under Section 23(8) of the County Assembly Service Act, and that there was no prima facie case. The court framed three issues: jurisdiction, whether injunctions lie against county governments, and whether the Giella threshold was met. It held the PSC could not grant the injunctive relief sought and was therefore not an adequate alternative remedy, so the doctrine of exhaustion was not offended. There is no bar to injunctions against county governments since Section 16 of the Government Proceedings Act protects only the national government. On Section 62, the court held the Applicant remains in office until his criminal case concludes, and the delay beyond the 24-month proviso cannot be visited on him; dismissal would offend the presumption of innocence. The injunction issued, leave to amend was granted, and costs were in the cause.

Key legal issues

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01

Jurisdiction / doctrine of exhaustion

Holding

The motion does not offend the doctrine of exhaustion; the court has jurisdiction because the PSC cannot grant the interlocutory injunctive relief sought.

Reasoning

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.

p. 5
02

Whether an injunction can issue against a County Government

Holding

Yes. No statutory provision protects county governments from injunctive orders; Section 16(2) of the Government Proceedings Act applies only to the national government.

Reasoning

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.

p. 5
03

Threshold for interlocutory injunction

Holding

The Applicant established a prima facie case with probability of success and irreparable injury under the Giella test.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.The draft amended Memorandum of Claim deemed as duly filed upon payment of the requisite Court filing fee
  4. 4.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1; Order 8 Rule 3(1); Order 1 Rule 10; Order 40
  • Civil Procedure ActSections 1A, 1B, 3A
  • County Assembly Service ActSection 23(8), 23(7)
  • Constitution of KenyaArticle 234(2)(i); Article 10
  • County Government ActSection 77
  • Public Service Commission ActSections 85, 87(2)
  • Fair Administrative Action ActSection 9(2)
  • Anti-Corruption and Economic Crimes ActSection 62
  • Government Proceedings ActSection 16(2)
  • Civil Procedure RulesOrder 29 Rule 2(2)(d)

Cases cited (7)

  • County Executive of Kisumu & 2 Others v. Kisumu County Assembly Service Board & 5 Others
    CA No. 4 & 5 of 2015
  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    [1989] eKLR
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    [2023] KESC 113 (KLR)
  • Lawrence Ogaro Onyiego & Another vs Samwel Minika & Another
    [2017] eKLR
  • James Muigai Thungu vs County Government of Trans Nzoia & 2 Others
    [2017]
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    (2001) IEA 86
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

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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 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.