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ELRCPartially AllowedKisumu ELRC Petition No. E020 of 2024· [2025] KEELRC 546 (KLR)

Hongo v Governor Kisumu County & 5 others (Petition E020 of 2024) [2025] KEELRC 546 (KLR)

Employment and Labour Relations Court
27 February 2025
JGJacob Gakeri
5,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that Kisumu's Governor unfairly dismissed a county executive member without giving reasons or a hearing, awarding him over KES 1.6 million.

What this practically means

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Executive summary

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The Petitioner, appointed County Executive Committee Member for Lands, Physical Planning, Housing and Urban Development, Kisumu County on 13th December, 2023, was terminated by letter dated 18th April, 2024 without reasons. He petitioned alleging violation of Articles 41 and 47 of the Constitution, seeking declarations, certiorari, mandamus, prohibition, reinstatement and compensation, and challenging the appointment of his replacement, the 6th respondent. On 20th May, 2024 the court granted conservatory orders restraining the respondents from replacing him or substantively filling the position, but the 6th respondent was vetted, approved and sworn in on 22nd May, 2024. The court held that the conservatory order was never served and could not be enforced, that the orders in the earlier Agwa petition were office-specific and in personam, and that no contempt arose. On the merits, the court found the termination unfair and unlawful: the Governor gave no reasons, and the discretion under Section 31(a) of the County Governments Act must be exercised reasonably with due process, following the Court of Appeal in the Nyeri and Garissa CEC cases. The Petitioner's constitutional rights to due process, fair labour practices and fair administrative action were violated. The Petitioner failed to prove any illegality in the 6th respondent's appointment, in the acting appointment of Mr. John Owiti, or in the expenditure claims. Certiorari, prohibitions, mandamus and reinstatement were declined; reinstatement was inappropriate as trust and confidence had been lost. Judgment was entered against the 2nd respondent with a declaration of violation, Kshs.1,617,000 being four months' gross salary as compensation under Article 23(3)(e), costs of the suit and interest from the date of judgment until payment in full.

Key legal issues

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01

Whether the termination of the Petitioner as CEC Member was fair and lawful

Holding

The termination was unfair and unlawful for want of reasons, notice, hearing and due process

Reasoning

The termination letter dated 18th April, 2024 gave no reasons, and the Petitioner's letter of 29th April, 2024 seeking reasons went unanswered. The Governor acted on his own motion under Section 31(a) of the County Governments Act without involving the County Assembly. Relying on the Court of Appeal in County Government of Nyeri v Cecilia Wangechi Ndung'u and County Government of Garissa v Idriss Aden Mukhtar, the court held the discretion had to be exercised reasonably and with due process. No reasons or hearing having been given, Articles 41 and 47 and 236(b) were violated.

p. 10
02

Whether the respondents breached the conservatory orders of 20th May, 2024 in appointing the 6th respondent

Holding

No breach, as the order was never served and the orders in the earlier Petition No. E017 of 2024 were specific to a different office

Reasoning

The Petitioner provided no evidence of service of the 20th May, 2024 order. The orders in ELRC Petition No. E017 of 2024 restrained vetting for the Water, Energy portfolio only and were in personam, not in rem. Without service, the respondents could not have known of the restraint and filled the position on 22nd May, 2024 before any order was served, hence contempt could not lie and the position was not protected.

p. 6
03

Whether the appointment of the 6th respondent was procedurally flawed

Holding

The appointment process was not shown to be vitiated; the Petitioner failed to discharge the burden of proof

Reasoning

The respondents demonstrated a full process: nomination on 30th April, 2024, forwarding of the nominee's documents to the County Assembly Clerk, public notice of vetting in the Daily Nation on 14th May, 2024, EACC background checks, Assembly approval communicated on 22nd May, 2024 and appointment and swearing in on even date. Section 107 and 108 of the Evidence Act placed the burden on the Petitioner, who led no evidence of the specific legal provisions violated.

p. 7

Legal principles established

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  • A Governor's discretion under Section 31(a) of the County Governments Act to dismiss a CEC member must be exercised reasonably, for valid and compelling reasons and in accordance with the principles of devolution
  • Section 31(a) does not preserve the pleasure doctrine; a Governor must follow due process and give reasons and a fair hearing before dismissing a CEC member
  • Restraining orders are generally in personam not in rem and cannot be applied by implication to a different case or office
  • Acting appointments are a legitimate temporary mechanism for ensuring continuity of services pending substantive appointment

Court orders

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  1. 1.Declaration that the 1st respondent violated the Petitioner's constitutional rights on due process, fair labour practices and fair administrative action
  2. 2.Compensation of Kshs.1,617,000 being four months' gross salary
  3. 3.Costs of the suit
  4. 4.Interest on the compensation from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20(1), 22(1), 23(3)(e), 27, 28, 35, 40, 41, 47, 48, 50(1), 75, 159(2)(d), 179(1), 232, 236(b)
  • County Governments ActSections 31(a), 40(1)(c)
  • Evidence ActSections 107, 108
  • Public Service Commission ActSection 34(3)
  • Fair Administrative Action Actnull
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Centre for Rights Education & Awareness (CREAW) & 7 Others V Attorney General
    [2011] eKLR
  • Adrain Kamotho Njenga V Selection Panel for the Appointment of Commissioners of the IEBC
    [2021] eKLR
  • Trust Bank Ltd V Amin Co. Ltd & Another
    [2000] eKLR
  • Anarita Karimi Njiru V Republic
    [1979] eKLR
  • County Government of Nyeri & Another V Cecilia Wangechi Ndugngu
    [2015] eKLR
  • Walid Khalid V County Assembly of Mombasa & Others
    [2018] eKLR
  • Alice Wanjiru Ruhiu V Assembly of Yahweh
    [2021] eKLR
  • Raila Odinga & Another V I.E.B.C & 2 Others; Ekuru Aukot & Another (Interested parties); Attorney General (Amicus Curiae)
    [2017] KESC 42 (KLR)
  • David Bagine V Martin Bundi
    [997] eKLR
  • Anne Wambui Ndiritu V Joseph Kiprono Ropkoi & Another
    [2005] IEA 334
  • Evans Nyakwana V Cleophas Bwana Ongaro
    [2015] eKLR
  • County Government of Garissa & another V Idriss Aden Mukhtar & 2 Others
    [2020] eKLR
  • Marylyne Yanzar Agwa V The County Governor of Kisumu
    Kisumu ELRC Petition No. E017 of 2024
Jurisdiction invoked
Articles 41, 47, 236(b) and 23 of the Constitution of Kenya (fair labour practices, fair administrative action, due process and constitutional remedies)

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, "Hongo v Governor Kisumu County & 5 others (Petition E020 of 2024) [2025] KEELRC 546 (KLR)", Case Analysis (2025). Kisumu ELRC Petition No. E020 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/546/eng@2025-02-27

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