The impeachment and removal of the Speaker of Kisumu County Assembly from office was lawful.

George Onyango Oloo v Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 others (Interested Parties)

Petition No 32 of 2019

Employment and Labour Relations Court at Kisumu

Mathews N Nduma, J

December 10, 2019

Reported by Beryl Ikamari

Constitutional Law – devolution - county governments - speaker of a county assembly - impeachment and removal of a speaker from office - legal requirements relating to the removal of a speaker from office - whether the Speaker of the Kisumu County Assembly was lawfully impeached and removed from office.

Constitutional Law – devolution - county governments - assets of a county assembly - consequences of the removal of a county assembly speaker from office - whether it was lawful to ask the Speaker of the Kisumu County Assembly to return certain assets allocated to him upon his removal from office.

Brief facts

The petitioner challenged his impeachment and removal from office as Speaker of the Kisumu County Assembly. Via e-mail, the petitioner was served with a notice requiring him to defend himself against ten allegations which formed the basis of the impeachment motion attached to the e-mail. The allegations included a corruption matter. The petitioner did not attend the impeachment proceedings. He alleged that goons blocked the entrance of the County Assembly chambers and he therefore failed to gain access. Further, the petitioner challenged the lawfulness of the decision to ask him to return certain assets including a motor vehicle which was allocated to him by the County Assembly.

The petitioner stated that the impeachment process that led to his removal from office violated articles 10, 21, 25, 27, 28, 41, 47, 50 and 232 of the Constitution and standing orders 61(1), 61(5) & 154 of the Kisumu County Assembly. He alleged that there had been violations of his rights to fair hearing, equality and equal protection before the law, fair administrative action, human dignity and fair labour practices.

Issues

1. Whether the impeachment process leading to the removal of the Speaker of the Kisumu County Assembly from office was lawful.
2. Whether it was lawful to ask a former speaker who had been removed from office to return assets allocated to him by the county assembly.

Held

1. There were ten allegations made against the petitioner and the most critical one related to alleged corruption while he served as the Chairman of the Lake Basin Development Authority. It was a proven fact that the petitioner faced those corruption allegations in the Chief Magistrate's Court at Milimani Anti-Corruption Case No 20 of 2018.
2. It was proven that the impeachment motion was introduced to the house on September 17, 2019 and was slotted for debate on September 18, 2019. It was also proven that a resolution was passed to remove the petitioner from office.
3. The petitioner was served with the impeachment motion a day before the hearing of the motion. It was therefore upon the petitioner to prove on a balance of probabilities that he was blocked from attending the hearing.
4. The petitioner bore the onus of proving on a balance of probabilities that there was no just cause for his removal and that the procedure used for his removal from office violated the relevant standing orders of the house, the relevant statutory provisions under the County Governments Act and the relevant provisions of the Constitution especially articles 2, 10, 21, 27, 41, 47, 50, 178, 232 and 259 under which the petition was premised.
5. Evidence showed that the conditions precedent to the impeachment of a speaker had been met. A formal notice issued to the Clerk of the County Assembly stating the grounds of removal and bearing the signature of 29 members from the County Assembly was filed and served on the petitioner via e-mail. The petitioner was invited to attend the hearing of the motion on September 18, 2019 at 2:30 pm. The proceedings were presided over by a member elected in accordance with the law and a resolution to remove the speaker was passed by 42 members of the county assembly and that number constituted at least 75% of the membership of the assembly.
6. On a balance of convenience, it was important to uphold public interest as a major consideration in the matter. The petitioner prayed for reinstatement as speaker. The court was conscious of the corruption case being faced by the petitioner and the fact that the petitioner was to be presumed innocent until proven guilty.
7. There were no statutory or constitutional guidelines placed before the court to show how a substantive speaker of a County Assembly was to be handled pending the determination of criminal proceedings against him.

Petition dismissed.

Orders:-

1. The petitioner was to release to the 2^nd respondent motor vehicle registration no. 42C9039A – Toyota Land Cruiser.
2. The 2^nd respondent was to pay the terminal benefits due and owing to the petitioner less liabilities owed by the petitioner to the 2^nd respondent.
3. Each party to bear its costs.