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ELRCPartially AllowedPetition dated 19th December 2023 (with Notice of Motion dated 19th December 2023)· [2024] KEELRC 463 (KLR)

Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 463 (KLR)

Employment and Labour Relations Court
29 February 2024
10,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Members of the Kakamega County Public Service Board petitioned after the County Assembly of Kakamega resolved on 14th December 2023 to remove them from office, alleging violations of their constitutional rights and seeking conservatory orders restraining implementation of the resolution and any recruitment of replacements. The 1st, 3rd and 5th Respondents filed a preliminary objection on competence and jurisdiction, invoking section 10 of the County Assemblies (Powers and Privileges) Act; the 2nd and 4th Respondents argued exhaustion of the Public Service Commission appeal route under section 77 of the County Governments Act. The Court dismissed the competence challenge, holding that joint affidavits are permissible and Article 159 requires determination on merit. On jurisdiction, it held the removal process is quasi-judicial, so the ELRC, having the status of the High Court, has supervisory jurisdiction under Article 165(6); no assembly is immune from constitutional challenge. The exhaustion argument failed because the Commission's appellate power under section 77 deals only with the merits of decisions over county public officers, not constitutional propriety of assembly removals. The Court confirmed the Assembly has power to remove board members only on Article 251(1) grounds by a 75% vote, following the Article 251(2) petition procedure and Standing Orders. It found substantial non-compliance with fair hearing requirements, including service of the committee report giving less than the three days required by Standing Order 65(2). Finding a prima facie case, risk of the Petition being rendered nugatory and public interest, the Court confirmed Justice Radido's temporary order, staying the Assembly's decision and prohibiting replacement or recruitment of board members pending the Petition, directed an expedited hearing, dismissed the preliminary objection, and made no order as to costs.

Key legal issues

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01

Competence of a joint affidavit

Holding

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

Reasoning

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.

p. 5
02

Jurisdiction over county assembly proceedings (section 10 County Assemblies Powers and Privileges Act)

Holding

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

Reasoning

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).

p. 9
03

Exhaustion of the PSC appeal route under section 77 of the County Governments Act

Holding

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

Reasoning

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.

p. 12
04

Power of a county assembly to remove board members and procedure

Holding

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

Reasoning

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.

p. 18
05

Whether conservatory orders should issue

Holding

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

Reasoning

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.

p. 20

Legal principles established

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  • 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

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  1. 1.Confirmed the temporary order of Justice Radido dated 21st December 2023 pending determination of the Petition
  2. 2.A temporary order issued staying the decision of the Kakamega County Assembly as communicated to the 1st Respondent on 15th December 2023
  3. 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. 4.The hearing of the main Petition to proceed on an urgent basis and without delay
  5. 5.Notice of Preliminary Objection dated 26th January 2024 dismissed as without merit
  6. 6.No order as to costs in the Application and the Notice of Preliminary Objection

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 10, 22(1), 23(3), 251(1), 251(2), 258(1), 159, 162, 165(3)(d)(ii), 165(6), 200(2)(c), 234(2)(i), 41, 47, 48, 50, 117, 262
  • County Governments ActSections 57, 58(1), 58(5), 58A, 77(1),(2)(c)
  • County Assemblies (Powers and Privileges) Act, No. 6 of 2017Sections 10, 18, 19, 20
  • Public Service Commission ActSections 85(a), 87(2)
  • Fair Administrative Action ActSection 9(2)
  • Oaths and Affirmations ActSection 5
  • Evidence ActSections 35, 80, 81, 82
  • Public Service Commission (County Appeals procedures) Regulations, 2022Regulations 2 and 4
  • Kakamega County Assembly Standing OrdersStanding Orders 64(5),(6),(10), 65(2),(7), 219(2)
  • Public Appointments (County Assemblies Approvals) Actnull
  • Industrial Court ActSection 12

Cases cited (17)

  • Francis Kariu Gakumbi & Another v Piliska Njoki Maina
    (2008) eKLR
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Martin Nyaga Wambora & Others v Speaker of the Senate & Others
    null
  • Speaker of the Senate & Another v Attorney General & 4 Others
    Reference No. 2 of 2013; [2013] eKLR
  • Doctors For Life International v Speaker of The National Assembly And Others
    null
  • Justus Kariuki Mate & Another v Martin Nyaga Wambora & another
    [2017] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & 8 Others
    [2014] eKLR
  • In Re the Matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • United States International University (USIU) v The Attorney General & Others
    null
  • Abdikadir Suleiman v County Government of Isiolo & another
    [2015] eKLR
  • Damour Florian Emmeric v Director of Immigration Services
    [2022] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and Others
    Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    Nairobi Civil Appeal No. 44 of 2014 (2015) eKLR
  • American Cyanamid v Ethicon Limited
    (1975) AC 396
  • Kenya Tea Growers Association & Another v Kenya Plantation and Agricultural Workers Union
    [2018] eKLR
  • Alfred Nyungu Kimungii v Bomas of Kenya
    [2013] eKLR
Jurisdiction invoked
Articles 162, 165(3)(d)(ii), 165(6) and 200(2)(c) of the Constitution; County Governments 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, "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.