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ELRCDismissedPetition No E008 of 2023· [2024] KEELRC 464 (KLR)

Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 464 (KLR)

Employment and Labour Relations Court
29 February 2024
JKJ. W. Keli
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court refused to reopen Kakamega County Public Service Board offices, ruling reinstatement can only come after a full hearing.

What this practically means

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Executive summary

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This is a decision of the Employment and Labour Relations Court at Kakamega (J.W. Keli, J) delivered on 29th February 2024, following the court's earlier ruling confirming temporary conservatory orders restraining the replacement of the Petitioners, the Chairperson and Members of the Kakamega County Public Service Board, pending determination of their petition challenging removal by the Kakamega County Assembly. After the ruling was delivered, counsel for the Petitioners, Mr. Shifwoka, made an oral application seeking an order that the Petitioners' offices be opened to enable them access and render services to the public, arguing they had not been removed from office and that under section 58 of the County Governments Act the County Assembly could only make recommendations. Counsel for the 2nd Respondent (Mr. Okong'o), the 1st, 3rd and 5th Respondents (Ms. Moga), and the 4th Respondent (Mr. Odero) opposed, contending the Assembly had removed the Petitioners, no reinstatement order could issue at the interlocutory stage, and the issue was evidence from the Bar. The 2nd Interested Party (Mr. Mukonyi) supported the application. The court held that no order for unlocking offices had been sought in the Notice of Motion; that under section 58(5) of the County Governments Act the County Assembly, by a vote of not less than seventy-five percent of all its members, could remove board members and did so; and that granting the oral application would amount to a substantive order of reinstatement, which can only issue as a final order. The oral application was dismissed with no order as to costs. The main petition remains pending.

Key legal issues

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01

Whether the court could, at the interlocutory stage, order the unlocking of the Petitioners' offices

Holding

The application was dismissed; no such order was sought in the Notice of Motion and granting it would amount to a substantive order of reinstatement, which only a final determination can grant

Reasoning

The court noted the oral application was not among the orders sought in the Notice of Motion dated 19th December 2023, and counsel's submission amounted to evidence from the Bar. Section 58(5) of the County Governments Act empowers the County Assembly, by a 75% vote, to remove board members, and the Assembly did so, precipitating the petition which remains undetermined. Ordering access to offices would in effect reinstate the Petitioners, a final remedy unavailable at the interlocutory stage.

Legal principles established

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  • An order of reinstatement to public office can only be issued as a final order, not at the interlocutory stage
  • Under section 58(5) of the County Governments Act, board members may be removed by a vote of not less than seventy-five percent of all members of the county assembly on grounds set out under Article 251(1) of the Constitution

Court orders

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  1. 1.The oral application by the Petitioners for unlocking of offices is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • County Governments Actsection 58(5)
  • Constitution of KenyaArticle 251(1)

Cases cited (1)

  • Kenya Tea Growers Association and another v Kenya Plantation and Agricultural Workers Union
    (2018) eKLR
Jurisdiction invoked
Original petition jurisdiction; provision not stated in the judgment

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 464 (KLR)", Case Analysis (2024). Petition No E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/464/eng@2024-02-29

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