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ELRCPartially AllowedPetition (Kisumu), instituted 30 April 2024· [2024] KEELRC 1595 (KLR)

Agwa v Governor, Kisumu County & 3 others (Petition E017 of 2024) [2024] KEELRC 1595 (KLR)

Environment and Land Court
26 June 2024
RSRadido Stephen
1,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Kisumu's Governor unlawfully fired a county executive member without a fair hearing, awarding her Kshs 1.5 million but refusing reinstatement.

What this practically means

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Executive summary

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The Petitioner, Maryline Yanzar Agwa, was appointed by the Governor of Kisumu County as County Executive Committee member for Water, Energy, Environment, Natural Resources and Climate Change around 13 December 2022. On 19 April 2024 the Governor announced her termination through a press release and a termination letter. She petitioned, alleging breaches of Articles 27, 28, 35, 40, 41, 43, 46, 47 and 50, and sought declarations, certiorari, mandamus (reinstatement), prohibition against her replacement, or alternatively payment of dues for the unexpired contract term. Interim conservatory orders had blocked vetting of her replacement. The Respondents filed responses late and no submissions. The Court framed the matter as one of unlawful termination, holding that although section 31(a) of the County Governments Act empowers a Governor to dismiss a CEC member, that power must be exercised in good faith, for proper reasons, and with due process and a fair hearing, per the Court of Appeal in County Government of Garissa v Idriss Aden Mukhtar. No due procedure was accorded to the Petitioner, so the dismissal was unfair and unlawful, breaching Articles 27(1) and (2), 40, 41(1), 47(1) and (2) and 236. On remedies, the Court declined certiorari, mandamus/reinstatement and prohibition as unworkable or an affront to the Governor's mandate, and rejected lost future income as speculative per Bank of Uganda v Tinkamanyire. Although compensation was not pleaded, the Court fashioned appropriate relief: damages of Kshs 1,500,000/- with interest from the date of judgment and costs to the Petitioner. The suit therefore succeeded in part. The Court regretted the County's failure to defend the challenge, risking wastage of public funds.

Key legal issues

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01

Scope of the Governor's power to dismiss a County Executive Committee member under section 31(a) of the County Governments Act

Holding

The power is discretionary but not absolute: it must be exercised in good faith, for proper reasons, and with due process and a fair hearing

Reasoning

The Court applied the Court of Appeal's decision in County Government of Garissa v Idriss Aden Mukhtar, which held that the pleasure doctrine is not preserved under section 31(a) and that the Governor must show a good reason justifying dismissal and that due process and a fair hearing were accorded. The Petitioner's dismissal was at the Governor's initiative without County Assembly involvement and without any hearing, breaching Articles 41, 47 and 236 of the Constitution.

p. 4
02

Appropriate remedies for unlawful termination of a CEC member

Holding

Certiorari, mandamus/reinstatement and prohibition were refused as unworkable; speculative lost future income was refused; the Court fashioned damages of Kshs 1,500,000/-

Reasoning

Because a Governor appoints persons aligned to his cause, reinstatement orders would be inefficacious and a prohibition on replacement would undermine the Governor's statutory mandate. Lost income for the unexpired contract term is speculative per Bank of Uganda v Tinkamanyire. Although compensation was not pleaded, the Court exercised its constitutional power to fashion an appropriate relief while remaining mindful of the pleadings and the interests of justice.

p. 5

Legal principles established

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  • A Governor may dismiss a CEC member under section 31(a) of the County Governments Act, but only for a good reason and subject to due process and a fair hearing
  • Termination of a CEC member without due procedure breaches Articles 41, 47 and 236 of the Constitution

Court orders

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  1. 1.A declaration that the act of the 1st Respondent in relieving the Petitioner of her duties as member of the County Executive Committee is a breach of her constitutional rights under Articles 27(1) and (2), 40, 41(1), 47(1) and (2), and 236 of the Constitution of Kenya
  2. 2.Damages of Kshs 1,500,000/-
  3. 3.Interest on the award from the date of judgment
  4. 4.Costs of the Petition to the Petitioner
Jurisdiction invoked
Article 22(1) and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Agwa v Governor, Kisumu County & 3 others (Petition E017 of 2024) [2024] KEELRC 1595 (KLR)", Case Analysis (2024). Petition (Kisumu), instituted 30 April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1595/eng@2024-06-26

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