Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 463 (KLR)
The bottom line
#A Kenyan court has blocked Kakamega County Assembly's attempt to remove Public Service Board members, ruling the removal process failed basic fair-hearing requirements.
What this practically means
#Executive summary
#Key legal issues
#Competence of a joint affidavit
A joint affidavit does not render the Petition incompetent; common law jurisdictions allow two or more persons to swear one affidavit and Article 159 favours hearing matters on merit
The 1st, 3rd and 5th Respondents relied on an excerpt of Francis Kariu Gakumbi that doubted joint affidavits, but the Court of Appeal in the same case corrected that view, noting certain common law jurisdictions freely allow two or more people to swear one affidavit. Guided by Article 159(2)(d), the Court held the Petition competent to be determined on merit.
Jurisdiction over county assembly proceedings (section 10 County Assemblies Powers and Privileges Act)
The Court has jurisdiction because the removal process is quasi-judicial and assemblies are bound by the Constitution; section 10 does not immunise unconstitutional acts
Relying on County Assembly of Kisumu and the Supreme Court in Justus Kariuki Mate v Martin Nyaga Wambora and Speaker of the Senate, the Court held that legislative assemblies are protected only where they act within the Constitution. Since the removal of board members is a quasi-judicial process and the ELRC has the status of the High Court under Article 162, it enjoys supervisory jurisdiction under Article 165(6).
Exhaustion of the PSC appeal route under section 77 of the County Governments Act
Section 77 does not apply; the Commission's appellate power deals with merits of decisions of boards over county public officers, not constitutional challenges to assembly removal of board members
Following Abdikadir Suleiman v County Government of Isiolo, the Commission on appeal can only exercise powers the Board could have exercised, addressing merits rather than procedural or legal propriety. The Petitioners, as board members being removed by the Assembly through a quasi-judicial process, could not obtain the constitutional remedies sought via a section 77 appeal, so the exhaustion objection failed.
Power of a county assembly to remove board members and procedure
The Assembly has power under section 58(5) of the County Governments Act read with Article 251(1), but must follow Article 251(2)-type petition procedure and its Standing Orders, including fair hearing requirements
Section 58(5) permits removal only on Article 251(1) grounds by a 75% vote. The Act does not outline the process, so the Article 251(2) petition procedure applies at county level, governed by the Assembly's Standing Orders. On the evidence, service of the committee report was effected by email at 6.23 pm on 11th December 2023, outside official hours, giving less than the three days required by Standing Order 65(2) before the 14th December sitting - substantial non-compliance with fair hearing requirements.
Whether conservatory orders should issue
Yes - on prima facie non-compliance with fair hearing requirements, real danger of prejudice and public interest, the temporary order was confirmed to preserve the substratum of the Petition
Applying Gatirau Peter Munya v Dickson Mwenda Kithinji and Wilson Kaberia Nkunja, the Court found a prima facie case given substantial non-compliance by the Assembly, that the Petition would be rendered nugatory if recruitment proceeded (the advertisement having already been published then revoked), and that the public interest favours preserving the board's functioning pending hearing. The Court treaded carefully not to grant reinstatement as a substantive remedy, per Kenya Tea Growers Association.
Legal principles established
#- A county assembly cannot seek refuge under statutory privileges provisions where it violates the Constitution
- The ELRC, having the status of the High Court, has supervisory jurisdiction over quasi-judicial removal proceedings of a county public service board
- County Public Service Board members may only be removed on Article 251(1) grounds and by a 75% vote of the county assembly
- Service of a committee report under Standing Order 65(2) requires at least three days' notice before debate
Court orders
#- 1.Confirmed the temporary order of Justice Radido dated 21st December 2023 pending determination of the Petition
- 2.A temporary order issued staying the decision of the Kakamega County Assembly as communicated to the 1st Respondent on 15th December 2023
- 3.Prohibited the 1st, 3rd and 5th Respondents or any other person or agent from taking any step towards the replacement of the Petitioners or recruitment of new county public service board members
- 4.The hearing of the main Petition to proceed on an urgent basis and without delay
- 5.Notice of Preliminary Objection dated 26th January 2024 dismissed as without merit
- 6.No order as to costs in the Application and the Notice of Preliminary Objection
- Jurisdiction invoked
- Articles 162, 165(3)(d)(ii), 165(6) and 200(2)(c) of the Constitution; County Governments Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 463 (KLR)", Case Analysis (2024). Petition dated 19th December 2023 (with Notice of Motion dated 19th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/463/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.