Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 1384 (KLR)
The bottom line
#The court cancelled the Kakamega County Assembly's rushed removal of Public Service Board members, ordered their reinstatement, and awarded each Kshs.1 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court had jurisdiction
- 2.Whether the County Assembly of Kakamega had jurisdiction to entertain the petition and remove the petitioners from office as members of Kakamega County Public Service Board
- 3.Whether the Evidence Act applies to proceedings before the County Assembly and its committees
- 4.Whether the process that the County Assembly of Kakamega followed in removing the Petitioners from office was legal and fair and whether the Petitioners' rights were violated as alleged
- 5.Whether there existed reasons for removal of the Petitioners from office that met the threshold of Article 251 of the Constitution
- 6.Whether the reliefs sought are available to the Petitioners in the circumstances
Key legal issues
#Jurisdiction of the ELRC over county assembly removal proceedings
The court had jurisdiction because the removal of County Public Service Board members is a quasi-judicial process over which the ELRC, with the status of the High Court under Article 162, has supervisory powers.
Article 200(2)(c) empowers Parliament to legislate on removal of county officers, done through Section 58(5) of the County Governments Act. The removal process is quasi-judicial. The ELRC has High Court status under Article 162 and thus supervisory powers over persons, bodies or authorities exercising judicial or quasi-judicial functions, as affirmed by the Court of Appeal in the Kisumu County Assembly case and USIU v Attorney General. The court had already held it had jurisdiction in its ruling of 29th February 2024.
Jurisdiction of the County Assembly to remove Board members
The County Assembly had jurisdiction to remove Board members on Article 251(1) grounds by a 75% vote under Section 58(5) of the County Governments Act, though the Act did not prescribe the process.
Section 58(5) of the County Governments Act permits removal only on grounds set out in Article 251(1) and by a vote of not less than 75% of all members of the county assembly. The process is via a petition under Article 251(2) and the Assembly's Standing Orders, which the court described as quasi-judicial. The Assembly therefore had power to remove, but its designation of a retained member as Vice Chair exceeded its statutory mandate.
Applicability of the Evidence Act to county assembly proceedings
The Evidence Act does not apply to county assembly proceedings on production of documents; Section 14 of the County Assemblies (Powers and Privileges) Act governs such questions by reference to parliamentary usages, but witnesses retain the rights and privileges of witnesses before a court of law under Section 20.
Section 2 of the Evidence Act confines the Act to judicial proceedings before courts, not proceedings before assemblies. Section 14 of the County Assemblies (Powers and Privileges) Act directs that questions of hearing or receiving evidence and production of documents be determined by parliamentary usages, forms, customs, procedures and traditions. However, Section 20 guarantees summoned witnesses the same rights and privileges as witnesses before a court, which the court read to protect rights to produce evidence and cross-examine.
Fairness of the removal process and violation of rights
The removal process violated Articles 35, 47, 50 and 236 of the Constitution: notice was insufficient, the petitioners were not allowed to cross-examine Otenyo whose untested testimony was used, documents were obtained without transparency, the committee proceedings Hansard was not produced, and the report was affirmed by a non-member.
Standing Order 65(2) required three days' notice accompanied by the report and evidence; 12th December 2023 being Jamhuri day was excluded under Article 259(6), so the notice was insufficient. Section 20 of the County Assemblies (Powers and Privileges) Act confers court-like rights on witnesses, and Article 236(b) forbids removal of public officers without due process. Catherine Otenyo was summoned after closure of parties' cases and was not cross-examined, breaching natural justice. Documents were sourced opaquely by the Acting Clerk and handed to the 4th Respondent. Emails were unadmitted for want of a section 106B(4) certificate. The report signed by Hon. Makhanu, a non-member, was tainted with illegality.
Whether grounds for removal met the Article 251 threshold
The petition before the Assembly did not meet the Article 251 threshold; the allegations were based on speculation, and the selective retention of some members when all faced the same allegations as a corporate board evidenced profiling.
Applying the Sonko threshold, allegations must be serious, substantial, weighty, and precisely framed. The committee's finding that the Board conspired to dismiss Otenyo was unfounded since her termination letter of 19th October 2021 was signed by the Governor. The Board members were presumed to act in good faith absent proof to the contrary. The Assembly's decision to retain some members facing identical charges as a corporate board, and to designate one as Vice Chair, was ultra vires and supported a conclusion of profiling and premeditation.
Legal principles established
#- The ELRC, having the status of the High Court, has supervisory jurisdiction over county assemblies exercising quasi-judicial functions in the removal of County Public Service Board members
- County assemblies may remove members of a County Public Service Board on Article 251(1) grounds and by a 75% vote under Section 58(5) of the County Governments Act
- Witnesses before county assembly committees enjoy the same rights and privileges as witnesses before a court of law, including the right to cross-examination in quasi-judicial removal proceedings
- A committee report affirmed by a non-member of the committee is tainted with illegality
- Uncorroborated electronic evidence must be accompanied by a certificate under section 106B(4) of the Evidence Act to be admissible
- Documents obtained without disclosure of source, without affidavit or certification by the custodian, have no evidential significance
Court orders
#- 1.Declaration that the removal process of the Petitioners from office by the Kakamega County Assembly violated Articles 35, 47, 50 and 236 of the Constitution
- 2.Declaration that the rushed proceedings without sufficient notice before the Assembly and the removal of the Petitioners from office were unlawful; the 4th Respondent's petition before the Assembly did not meet the Article 251(1) threshold; and the signing/affirming of the report by Assembly Members not at the hearing was unlawful
- 3.Order of certiorari quashing the Assembly committee Report dated 11th December 2023 and the consequential decisions including the resolutions of 14th December 2023 communicated vide letters dated 15th December 2023
- 4.Injunction restraining the 1st, 3rd and 5th Respondents from relying on the letters dated 15th December 2023 communicating removal from office
- 5.Petitioners to resume office with immediate effect and serve for the remainder of their term unless lawfully removed
- 6.Each petitioner awarded Kshs.1 million for violation of their rights plus costs, with interest at court rates from date of judgment if not paid within 30 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(1) of the Constitution (ELRC with status of the High Court, with supervisory powers over bodies exercising quasi-judicial functions) and Article 23 read with Article 22(3) of the Constitution
Relief refused
#General and exemplary damages
The court awarded Kshs.1 million each for violation of rights instead of general and exemplary damages
Costs
Costs of the petition awarded to the petitioners (Kshs.1 million each plus costs, interest at court rates from date of judgment if not paid within 30 days)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An order of certiorari is hereby issued quashing the Report of the Assembly committee dated 11th December 2023 and the consequential decisions including the resolutions of 14th December 2023 of the 2nd Respondent communicated vide letters to the Petitioners dated 15th December 2023 removing them from ofice.
The petitioners are to resume ofice with immediate efiect and serve for the remainder of their term unless lawfully removed from ofice.
The petitioners are each awarded Kshs.1 million each for violation of their rights plus costs.
It is hereby declared that the removal process of the Petitioners from ofice, by the Kakamega County Assembly, the 2nd Respondent, was in violation of Articles 35, 47, 50 and 236 of the Constitution.
The Court finds that the process of removal of the County Public service board members from their employment is a quasi judicial process hence under the supervisory powers of the Court.
In the upshot the Court returns there was no procedural fairness in the process of removal of the petitioners.
I so decree in the instant case that the report was thus tainted with illegality for being afirmed by non- member to the committee.
Issues in the judgment
#Numbering of paragraphs in the judgment jumps from 100 to 110 repeatedly, indicating typographical/numbering errors
Paragraph 81-82 numbering is garbled, with substantive-issue headings interleaved into the list of issues
Disposition order 6 includes a stray closing quotation mark
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 1384 (KLR)", Case Analysis (2024). Petition dated 19th December 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1384/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.