1. Charles Owino Likowa (the Petitioner) was elected as the Speaker of the County Assembly of Migori on 21 September 2022.
2. On or around 24 April 2024, the members of the County Assembly voted to impeach the Petitioner. This prompted him to move the Court against the County Assembly (the County Assembly) on 30 April 2024, asserting that the decision breached his fundamental rights and was also unlawful.
3. Filed together with the Petition was a Motion under a certificate of urgency seeking interim orders. The Court directed the Petitioner to serve and at the same time issued an order restraining the County Assembly from electing a Speaker to replace the Petitioner.
4. The majority leader of the County Assembly filed a replying affidavit in response to the Motion and Petition on 9 May 2024.
5. When the Motion came up for an inter partes hearing on 14 May 2024, the Petitioner indicated that he wished to abandon it in lieu of an expedited hearing of the Petition.
6. The Court directed the Petitioner to file and serve a further affidavit and submissions, and the County Assembly to file submissions ahead of judgment on 12 June 2024.
7. The Petitioner filed a supplementary affidavit and submissions on 24 May 2024
8. However, on 28 May 2024, the Petitioner filed a Motion seeking leave to amend the Petition. The County Assembly did not oppose the application and an appropriate consent was filed.
9. The Court allowed an Amended Petition and also gave new directions on the filing and exchange of submissions.
10. The Petitioner sought the following reliefs in the Amended Petition:
(i) Declarations to issue to declare the removal/impeachment of the Petitioner by the Respondent on or around 23 April 2024 is unconstitutional and therefore unlawful on account of violations of the said provisions of the Constitution and Statutes enumerated in the Petition herein.
(ii) An order of certiorari to issue to bring into this Honourable Court for purposes of being quashed the decision of the Respondent removing/impeaching the Petitioner as the Speaker of Migori County Assembly for being in contravention of the provisions of the Constitution and Statutes aforecited in the Petition herein.
(iii) Damages for violation of the Petitioner’s right to fair labour practices, the right to a fair hearing and administrative action, and the Petitioner’s human dignity.
(iv) Exemplary damages.
(v) Loss of the Petitioner’s earnings specifically the salary for the unexpired period and gratuity.
(vi) All outstanding allowances from January 2024 to date.
(vii) General damages.
(viii) That costs of the Petition (sic).
11. The Petitioner filed fresh submissions on 28 May 2024, the County Assembly filed a replying affidavit in response to the Amended Petition on 3 June 2024, and submissions on 5 June 2024.
12. The Petitioner identified the Issues for adjudication as:
(i) Whether the alleged impeachment of the Petitioner was conducted in accordance with the law and the rights accorded the Petitioner?
(ii) If the Petitioner is entitled to the reliefs sought?
13. The County Assembly set out the Issues as:
(i) Whether the replying affidavits sworn on behalf of the Respondent by Hon Edward Ouma Ooro is incompetent to deposed issues in an affidavit on behalf of the Respondent?
(ii) Whether the orders sought should be declined on the basis of judicial avoidance and deference from the standpoint of the principle of separation of powers as a governance principle?
(iii) Whether the suit offends the provisions of sections 10 and 11 of the County Assemblies Powers and Privileges Act.
(iv) Whether the matters complained off concern internal issues of the County Assembly as a legislative body?
(v) Whether the proceedings offend the doctrine of separation of powers encapsulated in Article 175(a) of the Constitution and the object and principles of devolution as governance principle?
(vi) Whether in removing the Petitioner from office on 23 April 2024, the Respondent violated the Petitioner’s constitutional rights?
(vii) The remedies if any available to the Petitioner?
(viii) The issue of costs.
14. The Court has considered the Amended Petition, affidavits, and submissions.
15. In the Court’s view, some of the Issues set out by the County Assembly as arising for determination are red-herrings meant to cloud the real Issues in contention.
16. The Court is of that view because, in the affidavits, the County Assembly did not attempt at all to disclose or reveal the factual as well as legal compliance with the due processes attendant to a process to remove a Speaker from office.
17. In the Court’s view, the case at hand will succeed or fail on the question and findings of whether the County Assembly followed the law as far as the right to procedural/administrative fairness was complied with.
Procedural fairness/Fair administrative action
18. Article 200(2)(c) of the Constitution directed Parliament to enact legislation providing for the removal of persons holding offices within county governments.
19. A speaker of a County Assembly holds an office within the county government.
20. In light of the imperative, Parliament enacted the County Governments Act.
21. Section 11 of the Act provides:
Removal of speaker from office.
11. (1) A speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the county assembly.
(2) A notice of the intention to move a motion for a resolution to remove the speaker shall be given in writing to the clerk of the county assembly, signed by at least one third of all the members of the county assembly stating the grounds for removal.
(3) A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9(4).
(4) Before the debate and voting on a motion under subsection (3), the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly
22. The above statutory provisions are mirrored word for word in Order 59 of the Standing Orders of the County Assembly of Migori.
23. The Petitioner asserted in his affidavits that a notice of intention to move a Motion for a resolution to remove him from the office of Speaker was not served upon the Clerk as demanded by section 11(2) of the County Governments Act.
24. In the instant case, the County Assembly has not demonstrated that a notice of intention to remove the Petitioner signed by at least one third of the membership of the Assembly was given to the Clerk.
25. Section 11(3) of the Act also requires that the removal motion be debated and voted on by the plenary of the County Assembly, presided over by a member elected for that purpose.
26. Proceedings before a County Assembly are recorded in a Hansard.
27. The County Assembly did not place any material before the Court in the form of a Hansard or any other record to show that the plenary of the County Assembly debated a motion to remove the Petitioner as contemplated by section 11(3) and (4) of the County Governments Act.
28. Before the County Assembly votes on a Motion seeking the removal of the Speaker, section 11(4) of the County Governments Act demands that the Speaker be accorded an opportunity to make representations before the plenary of the County Assembly.
29. The Court would expect that the Speaker would be formally notified of the right to appear before the plenary of the County Assembly to make a defence case and that the notification will set out the grounds for removal and the venue, date, and time of the hearing.
30. The County Assembly did not place before the Court any formal notification served on the Petitioner requesting him to appear before the County Assembly to respond to the purported allegations which led to his removal.
31. Members of a County Assembly are state officers and they are expected to adhere to the high values and principles expected of state officers set out in the Constitution and in terms of the Leadership and Integrity Act and the guiding Standing Orders.
32. The values and principles are well set out in Chapter Six of the Constitution. The members of the County Assembly hold their offices in trust for the public and their decisions must promote public confidence in their offices.
33. The Constitution expects members of a County Assembly to execute their duties honestly, objectively, and impartially, and not to be influenced by improper motives.
34. The processes by the County Assembly leading to the removal from office of the Petitioner did not reflect any sense of the constitutional responsibilities of leadership expected of the members of the County Assembly of Migori.
35. To use street parlance, the members of the County Assembly of Migori adopted a kienyeji route to flush the Petitioner out of an office he was democratically elected to.
36. The Court finds that the County Assembly not only violated the Petitioner’s rights to fair administrative action and right to be heard which cannot be limited in terms of Article 25 of the Constitution, but they also flouted the obtaining statutory framework on the removal from office of a Speaker of the County Assembly.
37. The Court further finds that apart from violation of the Petitioner's fundamental rights, he served harm or legal injury.
Breach of contract
38. The Petitioner pleaded a case for an award of allowances from January 2024. The nature of these allowances was not pleaded with particularity nor was any evidential foundation to this head of the claim made.
39. This head of the claim was not proved to the required standard and relief is declined.
Appropriate relief
Reinstatement
40. The Petitioner abandoned the prayer for reinstatement.
41. In the circumstances of this case, the Court would not have hesitated in granting reinstatement.
Lost future income
42. The Petitioner made a plea to be awarded the income he would have earned had he served the full term of 5 years (he was earning a monthly remuneration of Kshs 771,503/- and had served for about 17 months out of the expected 60 months).
43. The Petitioner relied on the Court of Appeal decision in National Land Commission v Dr Salome Munubi & 4 Ors (2022) KECA 391 (KLR) to advance the cause for lost future income.
44. The Court finds the authority distinguishable as the concerned parties were affected by retirement age whilst in the instant case, the Petitioner was serving a defined term and could be removed from office during the term on cause, but after due process as outlined in the County Governments Act and the Standing Orders.
45. The Petitioner did not draw the attention of the Court to any authority where lost future income had been awarded in case of an unlawfully impeached Speaker or set a legal basis for such a relief.
Exemplary damages
46. Exemplary damages are meant to serve a punitive purpose against a defendant and to deter future unlawful behaviour.
47. If the Court were to award exemplary damages, they would not be satisfied by the individual members of the County Assembly who were not parties to the litigation, but from public funds made available to the County Assembly.
48. The Court is, therefore, of the view that this not a suitable case to award exemplary damages.
General damages
49. The Court has found the decision of the County Assembly violated the Petitioner’s rights. A legal injury or wrong should not be left without an appropriate remedy.
50. If this was a case of unfair termination of employment subject to the remedies set out in section 49(4) of the Employment Act, 2007, the Court would have awarded maximum compensation equivalent to 12-months’ gross wages.
51. The factors to consider in awarding general damages for violation of fundamental rights are however different.
52. The Petitioner was hounded out of office for undisclosed and unproven allegations. The decision was bereft of any legal or factual standing.
53. The Petitioner was elected for a 5-year term. The legal framework in place expected him to adhere to certain constitutional and legal leadership/integrity standards.
54. A breach of those standards would attract removal from office but after complying with certain protections including due process.
55. There is nothing on record to suggest that the Petitioner did not keep to the leadership and integrity standards expected of him. Without such a basis, the Petitioner expected to serve his full term.
56. The Court is of the view that general damages of Kshs 10,000,000/- would be appropriate.
57. Before concluding, the Court observes that the delivery of this judgment was brought forward with notice to the parties.
Conclusion and Orders
58. In consideration of the above, the Court finds and declares:
(i) A declaration is hereby issued that the Respondent violated the Petitioner’s rights to fair hearing and procedural/administrative fairness in the removal process.
(ii) A declaration is hereby issued that the removal of the Petitioner from the office of Speaker on 23 April 2024 was unlawful.
(iii) An order of certiorari is hereby issued to bring into this Honourable Court for purposes of being quashed the decision of the Respondent removing/impeaching the Petitioner as the Speaker of Migori County Assembly for being in contravention of the provisions of the Constitution and Statutes aforecited in the Petition herein.
(iv) The Petitioner is awarded general damages of Kshs 10,000,000/-.
59. The damages to attract interest from the date of judgment.
60. Considering the findings herein above, the Court would have ordered the members of the County Assembly to individually shoulder the costs of the Petition, but because such a cause was not pleaded, the Court orders the Respondent to bear the costs of the Petition.
2. On or around 24 April 2024, the members of the County Assembly voted to impeach the Petitioner. This prompted him to move the Court against the County Assembly (the County Assembly) on 30 April 2024, asserting that the decision breached his fundamental rights and was also unlawful.
3. Filed together with the Petition was a Motion under a certificate of urgency seeking interim orders. The Court directed the Petitioner to serve and at the same time issued an order restraining the County Assembly from electing a Speaker to replace the Petitioner.
4. The majority leader of the County Assembly filed a replying affidavit in response to the Motion and Petition on 9 May 2024.
5. When the Motion came up for an inter partes hearing on 14 May 2024, the Petitioner indicated that he wished to abandon it in lieu of an expedited hearing of the Petition.
6. The Court directed the Petitioner to file and serve a further affidavit and submissions, and the County Assembly to file submissions ahead of judgment on 12 June 2024.
7. The Petitioner filed a supplementary affidavit and submissions on 24 May 2024
8. However, on 28 May 2024, the Petitioner filed a Motion seeking leave to amend the Petition. The County Assembly did not oppose the application and an appropriate consent was filed.
9. The Court allowed an Amended Petition and also gave new directions on the filing and exchange of submissions.
10. The Petitioner sought the following reliefs in the Amended Petition:
(i) Declarations to issue to declare the removal/impeachment of the Petitioner by the Respondent on or around 23 April 2024 is unconstitutional and therefore unlawful on account of violations of the said provisions of the Constitution and Statutes enumerated in the Petition herein.
(ii) An order of certiorari to issue to bring into this Honourable Court for purposes of being quashed the decision of the Respondent removing/impeaching the Petitioner as the Speaker of Migori County Assembly for being in contravention of the provisions of the Constitution and Statutes aforecited in the Petition herein.
(iii) Damages for violation of the Petitioner’s right to fair labour practices, the right to a fair hearing and administrative action, and the Petitioner’s human dignity.
(iv) Exemplary damages.
(v) Loss of the Petitioner’s earnings specifically the salary for the unexpired period and gratuity.
(vi) All outstanding allowances from January 2024 to date.
(vii) General damages.
(viii) That costs of the Petition (sic).
11. The Petitioner filed fresh submissions on 28 May 2024, the County Assembly filed a replying affidavit in response to the Amended Petition on 3 June 2024, and submissions on 5 June 2024.
12. The Petitioner identified the Issues for adjudication as:
(i) Whether the alleged impeachment of the Petitioner was conducted in accordance with the law and the rights accorded the Petitioner?
(ii) If the Petitioner is entitled to the reliefs sought?
13. The County Assembly set out the Issues as:
(i) Whether the replying affidavits sworn on behalf of the Respondent by Hon Edward Ouma Ooro is incompetent to deposed issues in an affidavit on behalf of the Respondent?
(ii) Whether the orders sought should be declined on the basis of judicial avoidance and deference from the standpoint of the principle of separation of powers as a governance principle?
(iii) Whether the suit offends the provisions of sections 10 and 11 of the County Assemblies Powers and Privileges Act.
(iv) Whether the matters complained off concern internal issues of the County Assembly as a legislative body?
(v) Whether the proceedings offend the doctrine of separation of powers encapsulated in Article 175(a) of the Constitution and the object and principles of devolution as governance principle?
(vi) Whether in removing the Petitioner from office on 23 April 2024, the Respondent violated the Petitioner’s constitutional rights?
(vii) The remedies if any available to the Petitioner?
(viii) The issue of costs.
14. The Court has considered the Amended Petition, affidavits, and submissions.
15. In the Court’s view, some of the Issues set out by the County Assembly as arising for determination are red-herrings meant to cloud the real Issues in contention.
16. The Court is of that view because, in the affidavits, the County Assembly did not attempt at all to disclose or reveal the factual as well as legal compliance with the due processes attendant to a process to remove a Speaker from office.
17. In the Court’s view, the case at hand will succeed or fail on the question and findings of whether the County Assembly followed the law as far as the right to procedural/administrative fairness was complied with.
Procedural fairness/Fair administrative action
18. Article 200(2)(c) of the Constitution directed Parliament to enact legislation providing for the removal of persons holding offices within county governments.
19. A speaker of a County Assembly holds an office within the county government.
20. In light of the imperative, Parliament enacted the County Governments Act.
21. Section 11 of the Act provides:
Removal of speaker from office.
11. (1) A speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the county assembly.
(2) A notice of the intention to move a motion for a resolution to remove the speaker shall be given in writing to the clerk of the county assembly, signed by at least one third of all the members of the county assembly stating the grounds for removal.
(3) A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9(4).
(4) Before the debate and voting on a motion under subsection (3), the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly
22. The above statutory provisions are mirrored word for word in Order 59 of the Standing Orders of the County Assembly of Migori.
23. The Petitioner asserted in his affidavits that a notice of intention to move a Motion for a resolution to remove him from the office of Speaker was not served upon the Clerk as demanded by section 11(2) of the County Governments Act.
24. In the instant case, the County Assembly has not demonstrated that a notice of intention to remove the Petitioner signed by at least one third of the membership of the Assembly was given to the Clerk.
25. Section 11(3) of the Act also requires that the removal motion be debated and voted on by the plenary of the County Assembly, presided over by a member elected for that purpose.
26. Proceedings before a County Assembly are recorded in a Hansard.
27. The County Assembly did not place any material before the Court in the form of a Hansard or any other record to show that the plenary of the County Assembly debated a motion to remove the Petitioner as contemplated by section 11(3) and (4) of the County Governments Act.
28. Before the County Assembly votes on a Motion seeking the removal of the Speaker, section 11(4) of the County Governments Act demands that the Speaker be accorded an opportunity to make representations before the plenary of the County Assembly.
29. The Court would expect that the Speaker would be formally notified of the right to appear before the plenary of the County Assembly to make a defence case and that the notification will set out the grounds for removal and the venue, date, and time of the hearing.
30. The County Assembly did not place before the Court any formal notification served on the Petitioner requesting him to appear before the County Assembly to respond to the purported allegations which led to his removal.
31. Members of a County Assembly are state officers and they are expected to adhere to the high values and principles expected of state officers set out in the Constitution and in terms of the Leadership and Integrity Act and the guiding Standing Orders.
32. The values and principles are well set out in Chapter Six of the Constitution. The members of the County Assembly hold their offices in trust for the public and their decisions must promote public confidence in their offices.
33. The Constitution expects members of a County Assembly to execute their duties honestly, objectively, and impartially, and not to be influenced by improper motives.
34. The processes by the County Assembly leading to the removal from office of the Petitioner did not reflect any sense of the constitutional responsibilities of leadership expected of the members of the County Assembly of Migori.
35. To use street parlance, the members of the County Assembly of Migori adopted a kienyeji route to flush the Petitioner out of an office he was democratically elected to.
36. The Court finds that the County Assembly not only violated the Petitioner’s rights to fair administrative action and right to be heard which cannot be limited in terms of Article 25 of the Constitution, but they also flouted the obtaining statutory framework on the removal from office of a Speaker of the County Assembly.
37. The Court further finds that apart from violation of the Petitioner's fundamental rights, he served harm or legal injury.
Breach of contract
38. The Petitioner pleaded a case for an award of allowances from January 2024. The nature of these allowances was not pleaded with particularity nor was any evidential foundation to this head of the claim made.
39. This head of the claim was not proved to the required standard and relief is declined.
Appropriate relief
Reinstatement
40. The Petitioner abandoned the prayer for reinstatement.
41. In the circumstances of this case, the Court would not have hesitated in granting reinstatement.
Lost future income
42. The Petitioner made a plea to be awarded the income he would have earned had he served the full term of 5 years (he was earning a monthly remuneration of Kshs 771,503/- and had served for about 17 months out of the expected 60 months).
43. The Petitioner relied on the Court of Appeal decision in National Land Commission v Dr Salome Munubi & 4 Ors (2022) KECA 391 (KLR) to advance the cause for lost future income.
44. The Court finds the authority distinguishable as the concerned parties were affected by retirement age whilst in the instant case, the Petitioner was serving a defined term and could be removed from office during the term on cause, but after due process as outlined in the County Governments Act and the Standing Orders.
45. The Petitioner did not draw the attention of the Court to any authority where lost future income had been awarded in case of an unlawfully impeached Speaker or set a legal basis for such a relief.
Exemplary damages
46. Exemplary damages are meant to serve a punitive purpose against a defendant and to deter future unlawful behaviour.
47. If the Court were to award exemplary damages, they would not be satisfied by the individual members of the County Assembly who were not parties to the litigation, but from public funds made available to the County Assembly.
48. The Court is, therefore, of the view that this not a suitable case to award exemplary damages.
General damages
49. The Court has found the decision of the County Assembly violated the Petitioner’s rights. A legal injury or wrong should not be left without an appropriate remedy.
50. If this was a case of unfair termination of employment subject to the remedies set out in section 49(4) of the Employment Act, 2007, the Court would have awarded maximum compensation equivalent to 12-months’ gross wages.
51. The factors to consider in awarding general damages for violation of fundamental rights are however different.
52. The Petitioner was hounded out of office for undisclosed and unproven allegations. The decision was bereft of any legal or factual standing.
53. The Petitioner was elected for a 5-year term. The legal framework in place expected him to adhere to certain constitutional and legal leadership/integrity standards.
54. A breach of those standards would attract removal from office but after complying with certain protections including due process.
55. There is nothing on record to suggest that the Petitioner did not keep to the leadership and integrity standards expected of him. Without such a basis, the Petitioner expected to serve his full term.
56. The Court is of the view that general damages of Kshs 10,000,000/- would be appropriate.
57. Before concluding, the Court observes that the delivery of this judgment was brought forward with notice to the parties.
Conclusion and Orders
58. In consideration of the above, the Court finds and declares:
(i) A declaration is hereby issued that the Respondent violated the Petitioner’s rights to fair hearing and procedural/administrative fairness in the removal process.
(ii) A declaration is hereby issued that the removal of the Petitioner from the office of Speaker on 23 April 2024 was unlawful.
(iii) An order of certiorari is hereby issued to bring into this Honourable Court for purposes of being quashed the decision of the Respondent removing/impeaching the Petitioner as the Speaker of Migori County Assembly for being in contravention of the provisions of the Constitution and Statutes aforecited in the Petition herein.
(iv) The Petitioner is awarded general damages of Kshs 10,000,000/-.
59. The damages to attract interest from the date of judgment.
60. Considering the findings herein above, the Court would have ordered the members of the County Assembly to individually shoulder the costs of the Petition, but because such a cause was not pleaded, the Court orders the Respondent to bear the costs of the Petition.