JUDGMENT
The Petitioners herein filed the present application dated 15/12/2022 which is as follows:
That the Petitioners are female and male Kenyans of sound mind and residents of Siaya County.
That the 1 st Respondent is the Governor of Siaya County County Government. He is joint to this Petition as the Respondent pursuant to the provisions of Article 179 of the Constitution of Kenya and in his capacity as;
A public officer is bound by National Values and Principles of Governance as per Article 10 of the Constitution of Kenya, 2010.
The person in charge of management of affairs of Siaya County Government including the appointment of the County Executive Committee Members with the approval of the 2 nd Respondent.
A public officer under duty to promote and uphold the Principle Values and principles of Public Service as per Article 232 of the Constitution of Kenya, 2010.
That the 2 nd Respondent is the Occupant of the position of the Speaker of Siaya County Assembly an office established under Article 178 of the Constitution of Kenya, 2010 as read together with the Provisions of the County Government Act.
That the 3 rd Respondent is the occupant of the position of the Speaker Siaya County Assembly an office established under Article 178 of the Constitution of Kenya, 2010.
That the 14 th and 12 th Respondents are adult of sound mind who have been appointed by the 1 st Respondent at Siaya County Executive Committee members in various portfolios.
LEGAL FOUNDATION OF THE PETITION
Article 1(1) of the Constitution of Kenya provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.
Article 1(2) of the Constitution states that the people may exercise their sovereign power either directly or through their democratically elected representatives.
Article 2(1) of the Constitution of Kenya pronounces the Supremacy of the Constitution and provided that the Constitution binds all persons and all state organs at both levels of government.
Article 2(4) of the Constitution provides among other things that any act or omissions in contravention of the Constitution is invalid.
Article 3 of the Constitution obligates every person to respect, uphold and defend the Constitution.
Article 10 of the Constitution sets out the National Values and principles of Governance that state officers, state organs, public officers and all persons whenever they apply or interpret any law, make or implement policy decisions.
Amongst the National values and principles of Governance are national unity, the rule of law, Participation of the people, equity, social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability and sustainable development.
Article 73 (2) (a) of the Constitution, provides for the Principles of Leadership and Integrity to include inter alia selection on the basis personal integrity, competence and suitability, or election in a free and fair elections.
Article 179 of the Constitution provides that the Executive authority of the County is vested in, and exercised by, a County Executive Committee which shall consist of the County Governor, the Deputy Governor, and members appointed by the County Governor, with the approval of the Assembly, from among persons who are not members of the Assembly.
Article 232 of the Constitution provides for the Principles and values of Public Service to include inter alia fair competition and merit as the basis of appointments and promotions.
Article 258 of the Constitution of Kenya which provides that person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention.
Article 259 of the Constitution of Kenya which provides that the Constitution must be interpreted in a manner promotes its purposes, values and principles; advances the rule of law and human rights and fundamental freedom in the bill of rights, permits the development of the law and contributes to good governance.
Section 3 (3) of the County Government Act 2012 provides that subject to the Constitution, the Govenor shall appoint with approval of the County Assembly, the County Executive Committee in accordance with Article 179 (2) (b) of the Constitution.
Section 35 of the County Government Act, 2012 states that in performing the function under Sub section 2, the governor shall inter alia promote democracy, good governance, unity and cohesion within the County.
Section 35 of the County Government Act, 2012 provides that a person may be appointed as a member of the County Executive committee if that person satisfies the requirements of Chapter Six of the Constitution and has knowledge, experience and a distinguished career of not less than five years in the field relevant to the portfolio of the department to which the person is being appointed.
Section 7(8) of the Public Appointment (County Assemblies Approval) Act, 2017 provides that approval hearings shall focus on a candidate’s academics credentials, professional training and experience, personal integrity and background.
Section 8 of the Public Appointment (County Assemblies Approvals) Act 2017 provides that the issues for consideration by the relevant County Assembly in relation to any nomination shall be inter alia Constitutional or statutory requirements relating to the office in question and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination being made.
Section 10 of the Public Appointments (County Assemblies Approvals) Act 2017 provides that where nomination of a candidate is rejected by a County Assembly, the appointing authority shall submit to the County Assembly the name of another candidate, and the procedure for approval specified in this Act shall apply accordingly.
Section 10 of the Public Service (Values and Principles) act,2015 provides for the Principles and values of Public Service to include inter alia fair competition and merit as the basis of the appointment and promotion.
THE FACTS
That the Petitioners herein are Kenyan Citizen and Resident of Siaya County and that the 1 st Petitioner has deponed to the facts in support of the petition as hereunder.
That the Petitioners are registered voters in St. Teresa’s Primary School, Yala Township Ward, Gem Constituency in Siaya County.
That the Respondent was elected as the Governor of Siaya County on 9 th August 2022 and has taken oath of Office to execute his mandate as per the Constitution of Kenya and the relevant laws.
That pursuant to Article 179(2) (b) of the Constitution and the provisions of Section 5(1) of the Public Appointments (County Assembly Approval) Act, 2017, the H.E the Governor placed an advertisement for the position of the County Executive Committee members.
That key among the requirements were that the Applicants should:
Be in possession of a first degree in the relevant field from a recognized university in Kenya.
Have knowledge, experience and distinguished career of not less than ten (10) years in relevant filed to the portfolio of the departments to which the candidate is seeking to be appointed.
That pursuant to Section 6(1) of the public Appointments (County Assemblies Approval) Act, 2017, the 1 st Respondent submitted the names of the ten persons nominated to wit; the 4 th to 12 th Respondents to the 2 nd Respondent for vetting and approval.
That 3 rd Respondent then submitted the list of nominees to committee on appointments, which is one of the select committees established under standing order No. 195 of the County Assembly of Siaya, for consideration and for approval by the 3 rd Respondent as per the provisions of Article 179(2) (b) of the Constitution of Kenya.
That the committee on appointments under the Chairmanship of the 3 rd Respondent conducted its vetting and approval of the ten nominees and on its report rejected all the ten nominees submitted by the 1 st Respondent and made, inter alia; the following recommendations:
Pursuant to the provisions of Section 35(4) of the County Government Act, 2012 which states that a member of the County Executive Committee shall not hold any other state or public office, the committee advises the appointing authority to ensure that any nominee who is currently holding a public or state office provides evidence of resignation before appointment.
The appointing authority is further counselled to refrain from appointing any nominee who may be having any pending judicial issues until verifiable conclusions of such matter is presented.
The committee recommends that where a nominee is found to have laid under oath, no substantive appointment by the governor should be made until the nominee is cleared of such offence.
The committee strongly recommends that where there were skills and experience gaps observed in any nominee, the appointing authority should strive to realign the nominee’s knowledge and experience to relevant portfolio.
That the aforesaid report was tabled and debated before the membership of the 2 nd Respondent and the same was approved in its entirety.
That despite the aforesaid recommendations by the select Committee of the 2 nd Respondent and adoption of the same by the full membership of the 2 nd Respondent, the 1 st Respondent proceeded to appoint and swear in as Siaya County Executive Committee members the 4 th to 12 th Respondent on 28/11/2022,
That the aforesaid nomination, approval and appointment of the 4 th to the 12 th Respondents by the 1 st Respondent and the 2 nd Respondent did not only contravene the key requirements but was also the provisions of Section 35(3) and 35(4) of the County Government Act, 2012 for the following reasons:
The 4 th Respondent , Benedict Abonyo Omollo nominated, approved and appointed CEC for Finance and Economic Planning despite not having a first degree in the relevant filed and or knowledge, experience and distinguished career of not less than ten (10) years and or five (5) years in the relevant filed to the portfolio of the department to which the candidate is seeking appointment. Further, the 4 th Respondent was dismissed from office as the Director for Finance at the judiciary of Kenya in 2014 for misappropriation of Public Funds.
The 5 th Respondent Dr. Caroline P Adhiambo Akinyi Onyango nominated, approved and appointed CEC for water, Environment, Natural Resource and Climate Change despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than ten (10) and or five (5) years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the 5 th Respondent while under oath did, according to the findings of the Committee on Appointment of the 2 nd Respondent, gave false and misleading information to during approval hearing thus bringing into question her personal integrity.
The 6 th Respondent, George Odhiambo Nying’iro nominated, approved and appointed CEC for Public Works, Roads, Energy and Transport despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 7 th Respondent, Sylvester Odhiambo K’okoth nominated approved and appointed CEC for Agriculture, Irrigation, Food, Livestock and Fisheries despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 8 th Respondent Dr. Edgar Ouko Otumba nominated, approved and appointed CEC for Education, Youth Affairs, Gender and Social Services despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than ten (10) years and or five (5) years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 9 th Respondent Grace Agol a nominated, approved and appointed CEC for Trade Enterprise and Industrial Development despite not having the first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field or portfolio of the department to which the candidate is seeking appointment. Further, the 9 th Respondent nomination and subsequent appointment did contravene the provisions of Section 35 (1) (a) of the County Government Act, 2012 which makes it mandatory for the 1 st Respondent to, when nominating members of the Executive Committee, ensure that to that his appointments reflects the community and cultural diversity of the County.
The 10 th Respondent Anjeline Atieno Oduor nominated, approved and appointed CEC for Tourism, Culture, sports and Arts despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the 10 th Respondent was, at the time of appearing before the Committee on Appointment of the 2 nd Respondent, still employed at the State Department as the Senior Assistant Secretary – State Department for social protection, Senior Citizen Affairs. Thus, her appointment contravened Section 35 (4) and 35 (2) (c) of the County Government Act, 2012.
The 11 th Respondent, Maurice Otieno McOrege nominated, approved and appointed CEC for land, Physical Planning, Housing and Urban Development despite not having a first degree in the relevant field and or knowledge experience and distinguished career of not less than 10 years or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 12 th Respondent, CS Agunda Ochanda nominated, approved and appointed CEC for Governance and Administration despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the committee on appointment of the 2 nd Respondent observed that the 12 th Respondent had applied for the position of CEC member of Enterprise, Trade and industrialization and not CEC member for Governance and Administration which he had been nominated and appointed.
VIOLATIONS OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS AND FREEDOM
The Respondents are in violation of the provisions of Article 10 of the Constitution of Kenya that sets out the national values and principles of governance that binds all state officers, state organs, public officers and all persons whenever they apply or interpret any law, make or implement public policy decisions.
That the 1 st Respondent’s action violates national values and principles of governance which advocates for national unity, the rule of law, participation of the people, equity social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency and accountability, sustainable development.
That the 1 st Respondent’s action of appointing the 4 th to 12 th Respondents contravenes the hallowed principles of leadership and integrity under Article 73 of the Constitution which includes selection on the basis of personal integrity, competence and suitability; objectivity and impartiality in decision making, and ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practises and accountability to the public for decisions and actions.
That the appointment of the 4 th to 12 th Respondents by the 1 st Respondent violates Section 35 of the County Government Act, 2012 which provides that a person may be appointed as a member of County Executive Committee if that person satisfies the requirements of Chapter Six of the Constitution or and has knowledge, experience and a distinguished career of not less than five years in the relevant field to the portfolio of the department to which the person is being appointed.
That the appointment of the 4 th to 12 th Respondents by the 1 st Respondent violates section 8 of the Public Appointments (County Assemblies Approvals) Act, 2017 which provides that the issues for consideration by the relevant County Assembly in relation to any nomination shall be inter alia; Constitutional or statutory requirements relating to the office in question and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination is being made.
That based on the aforesaid, the Respondents have collectively acted in an opaque manner by denying the Petitioners, and the entire residents of the County of Siaya their sovereign rights granted and guaranteed under the Constitution of Kenya 2010.
That the Respondents have collectively acted towards the Petitioners in a manner that is manifestly irresponsible and perniciously to good leadership and governance.
The Petitioner sought for the following reliefs:
A declaration that the 4 th Respondent herein, Benedict Abonyo Omollo , is unsuitable to hold the position the County Executive Committee member for Finance and Economic Planning, Siaya County.
A declaration that the 5 th Respondent herein, Dr. Carloyine P Adhiambo Akinyi Onyango is unsuitable to hold the position the Count Executive Committee member for Water, Environment, natural Resources and Climate member for Public Works, Roads, Energy and Transport, Siaya County.
A declaration that the 6 th Respondent herein, George Odhiambo Nyangiro is unsuitable to hold the position the County Executive Committee member for Public Works, Roads, Energy and Transport Siaya County.
A declaration that the 7 th Respondent herein, Sylevester Odhiambo K’okoth is unsuitable to hold the position the County Executive Committee Member for Agriculture, Irrigation, Food, Livestock and Fisheries, Siaya County.
A declaration that the 8 th Respondent herein, Dr. Edgar Ouko Otumba , is unsuitable to hold the position of the County Executive Member for Education, Youth Affairs, Gender and Social Services, Siaya County.
A declaration that the 9 th Respondent herein, Grace Agola , is unsuitable to hold the position of the County Executive Committee member of Trade, Enterprise and Industrial Development, Siaya County.
A declaration that the 10 th Respondent herein, Anjeline Atieno Oduor is unsuitable to hold the position the County Executive Committee member for Tourism, Culture, sports and Arts, Siaya County.
A declaration that the 11 th Respondent herein, Maurice Otieno Mcorege is unsuitable to hold the position of the County Executive Committee member for Lands, Physical Planning, Housing and Urban Development, Siaya County.
A declaration that the 12 th Respondent herein, CS Agunda Ochanda , is unsuitable to hold the position of the County Executive Committee member for Governance and Administration, Siaya County.
Costs of this Petition be paid by the Respondents.
Any other further relief this Honourable Court may deem fit to grant.
The application was vehemently opposed by the Respondents. Vide a replying affidavit of Phillip Richard Owade dated 3 rd January 2023 on behalf of the 1 st , 4 th – 12 th Respondents, he stated inter alia; that he is the County Attorney and Acting County Secretary of the County Government of Siaya and therefore well conversant with the matter pertaining to the Petition hence competent to swear the affidavit; that the Petition as filed is frivolous, vexatious, irredeemable, incompetent, legally and factually unfounded, hopelessly misconceived and ought to be dismissed in limine; that the burden of proof of the allegations advanced by the Petitioners rests with them and that there is no iota of evidence adduced by them in support of the allegations upon which they seek the court to declare the 4 th to 12 th Respondents unsuitable to hold their respective offices; that the Petitioners have in the circumstances failed to discharge the burden of proof; that in any event, the Petitioners are calling upon this court to declare the 4 th – 12 th Respondents unsuitable to hold the dockets to which they were nominated, approved for appointment and appointed; that the power to determine suitability or otherwise of a person to serve as a county executive committee member is exclusively vested in the County Assembly; that the 4 th -12 th Respondents were all vetted and approved by the County Assembly of Siaya for appointment into the dockets to which they were appointed by the Governor and that this court cannot be called upon to conduct another vetting in the guise of this Petition; that the manner and style with which the Petitioners have fashioned reliefs is such that they are inviting this court to undertake a vetting exercise of the 4 th – 12 th Respondents suitability to hold office; that the only mechanism available in law for determining the suitability or otherwise of the 4 th to 12 th Respondents to hold office is by way of a vetting process which is legally within the domain of the County Assembly and not through a judicial process; that the County Assembly of Siaya having found the 4 th – 12 th Respondents suitable to hold office in the respective dockets to which they were nominated and subsequently appointed, this court cannot be way of this Petition adjudge them unsuitable to hold office; that this is not a matter that is within the jurisdiction of this court; that the fact that the Petitioners are not challenging the Assembly’s exercise of its vetting powers or process by which the vetting and approval of the 4 th – 12 th Respondents was conducted by the County Assembly, then the petition is without any basis; that any temptation by the court to look into the merits of the decision of the County Assembly or suitability or otherwise of the said Respondents to serve in their respective dockets would be nothing but a violation of the principles of separation of powers; that once the County Assembly has exercised its Constitutional and statutory powers of approval of the 4 th -12 th Respondents for appointment as County Executive Committee members, this court cannot interrogate the decision of the Assembly pursuant to which the 4 th to 12 th Respondents were approved; that in the event that the court makes a determination that 4 th – 12 th Respondents are unsuitable to hold office, then that determination would have the effect of removing the said 4 th -12 th Respondents from office, a matter which would not only be in violation of the principles of separation of powers but also outside the jurisdiction of this court; that the process of removal of a member of the County Executive Committee from office is well laid out in law and at no point does it begin with courts; that no evidence has been adduced to demonstrate that the County Assembly either exercised its powers of approval improperly, illegally or unprocedurally or that it considered irrelevant matters or ignored the issues raised by the Petitioners in this Petition in the course of vetting; that in any event, the vetting process was done in an open and transparent manner and that the Petitioners were aware when the said vetting exercise was being conducted and that they had the opportunity to ventilate their views before the County Assembly’s appointments Committee; that the fact that the Petitioners did not submit their said concerns before the County Assembly appointments committee and which they now raise in this Petition means that they are in breach of the exhaustion principle and therefore underserving of any audience before this court; that in the circumstances, the vetting and approval of the 4 th -12 th Respondents by the County Assembly and their subsequent appointment by the Governor into the dockets to which they were nominated was open, transparent, regular, procedural and legal and that the Petition is only an attempt by disgruntled elements to derail service delivery to the detriment of the people of Siaya County; that it is in the interest of justice and the people of Siaya who are the consumers of the services delivered by the 1 st , 4 th to 12 th Respondents that the Petition be dismissed; that being that the court cannot take the position of the County Assembly in vetting the 4 th – 12 th Respondents with a view of determining their suitability or otherwise to serve in the office of the County Executive Committee Member, this court is without any jurisdiction to either entertain the Petition or even grant the reliefs sought by the Petitioners; that for the foregoing reasons, the instant Petition dated 15 th December, 2022, is incompetent, frivolous, vexatious and lacks merit and that this Honourable court should dismiss it forthwith.
The petition was canvassed by way of written submissions.
Petitioners submissions are dated 17/3/2025 while the 1 st , 4 th – 12 th Respondent are dated 6/5/2025 and those of the 2 nd and 3 rd Respondents are dated 22/4/2025.
The Petitioners vide their submissions reiterated their prayers in the petition and seek that this court should grant them in their entirety.
Learned counsel for the Petitioners raised two issues for determination.
Whether this court has jurisdiction to determine the issues raised in the instant petition.
Whether the 1 st , 2 nd and 3 rd Respondents were in violation of any provisions of the Constitution or any written law with regard to the nomination, vetting and approval of the 4 th – 12 th Respondents to various positions of the County Executive Committee members, Siaya County and if so, whether the 4 th to 12 th Respondents are suitable to hold their respective positions as County Executive Committee members, Siaya County.
As regards the first issue, it was submitted that the doctrine of separation of powers postulates that each organ of government is independent and none should interfere with the functions of the other. That this doctrine also holds that each organ is to act as a check and balance of the other to ensure that each organ functions within the provisions of the Constitution or statute and that it is only the High Court, which is a creature of the Constitution, that is empowered to determine the Constitutionality or otherwise the functions of the other state organs. Reliance was placed on Article 165 (d) of the Constitution of Kenya 2010 which vests on the High Court the jurisdiction to hear and determine any question in respect to the interpretation of the Constitution including the determination of inter alia; the question whether any law is consistent with or in contravention of the constitution; the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of, the constitution or any matter relating to the constitutional powers of the state organs in respect of county governments; any matter relating to the constitutional relationship between levels of government.
Further, it was submitted that Article 23 of the Constitution of Kenya 2010 empowers the High Court to har and determine applications for redress of a denial, violation or infringement of, threat to, a right or fundamental freedom in the bill of Rights.
It was submitted that all persons and institutions are subject to review by the High Court in exercise of its jurisdiction to safeguard the principles and values of the Constitution and to uphold its supremacy.
Reliance was placed on the case of John Mining Temoi & Another v Govenor of Bungoma County & 17 others [2014] eKLR, where the court while referring to the case of John Kipng’eno Koech & 2 Others Vs. Nakuru County Assembly & 5 Others [2013] eKLR, held that:
“As such the court has jurisdiction to determine the constitutionality of the process of selection, nomination, approval as well as any appointment by the County Public Service Board, the Govenor or by the County Assembly. The scope of the court’s jurisdiction extends to the procedural improprieties, as well as the legality of the appointment decision to determine whether they accord with the constitutional threshold.”
Basing on the above citations, the Appellants submitted that this court is constitutionally clothed with the jurisdiction to hear and determine the present petition and urges the court to find as such.
As regards the second issue, it was submitted that the petitioners are challenging the appointment of the 4 th -12 th Respondents as members of the County Executive Member Siaya County on grounds that the appointments were done without adherence to the laid down procedures in that the persons appointed did not qualify and or meet the statutory requirements for such appointment. Further it was submitted that it is a requirement under the Constitution that state organs, state officers and in all their decisions, or activities must reflect the national values and principles of governance stipulated under Article 10 of the Constitution of Kenya 2010 which states:
“10(1) The national values and principles of governance in this article bind all state organs, state officers, public officers and all persons whenever any of them…. (a) applies or interprets this constitution, (b)enacts, applies or interprets any law; or (c) make or implements public policy decisions. (2) The national values and principles of governance include - patriotism, national unity, sharing and devolution
[...truncated]
The Petitioners herein filed the present application dated 15/12/2022 which is as follows:
That the Petitioners are female and male Kenyans of sound mind and residents of Siaya County.
That the 1 st Respondent is the Governor of Siaya County County Government. He is joint to this Petition as the Respondent pursuant to the provisions of Article 179 of the Constitution of Kenya and in his capacity as;
A public officer is bound by National Values and Principles of Governance as per Article 10 of the Constitution of Kenya, 2010.
The person in charge of management of affairs of Siaya County Government including the appointment of the County Executive Committee Members with the approval of the 2 nd Respondent.
A public officer under duty to promote and uphold the Principle Values and principles of Public Service as per Article 232 of the Constitution of Kenya, 2010.
That the 2 nd Respondent is the Occupant of the position of the Speaker of Siaya County Assembly an office established under Article 178 of the Constitution of Kenya, 2010 as read together with the Provisions of the County Government Act.
That the 3 rd Respondent is the occupant of the position of the Speaker Siaya County Assembly an office established under Article 178 of the Constitution of Kenya, 2010.
That the 14 th and 12 th Respondents are adult of sound mind who have been appointed by the 1 st Respondent at Siaya County Executive Committee members in various portfolios.
LEGAL FOUNDATION OF THE PETITION
Article 1(1) of the Constitution of Kenya provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.
Article 1(2) of the Constitution states that the people may exercise their sovereign power either directly or through their democratically elected representatives.
Article 2(1) of the Constitution of Kenya pronounces the Supremacy of the Constitution and provided that the Constitution binds all persons and all state organs at both levels of government.
Article 2(4) of the Constitution provides among other things that any act or omissions in contravention of the Constitution is invalid.
Article 3 of the Constitution obligates every person to respect, uphold and defend the Constitution.
Article 10 of the Constitution sets out the National Values and principles of Governance that state officers, state organs, public officers and all persons whenever they apply or interpret any law, make or implement policy decisions.
Amongst the National values and principles of Governance are national unity, the rule of law, Participation of the people, equity, social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability and sustainable development.
Article 73 (2) (a) of the Constitution, provides for the Principles of Leadership and Integrity to include inter alia selection on the basis personal integrity, competence and suitability, or election in a free and fair elections.
Article 179 of the Constitution provides that the Executive authority of the County is vested in, and exercised by, a County Executive Committee which shall consist of the County Governor, the Deputy Governor, and members appointed by the County Governor, with the approval of the Assembly, from among persons who are not members of the Assembly.
Article 232 of the Constitution provides for the Principles and values of Public Service to include inter alia fair competition and merit as the basis of appointments and promotions.
Article 258 of the Constitution of Kenya which provides that person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention.
Article 259 of the Constitution of Kenya which provides that the Constitution must be interpreted in a manner promotes its purposes, values and principles; advances the rule of law and human rights and fundamental freedom in the bill of rights, permits the development of the law and contributes to good governance.
Section 3 (3) of the County Government Act 2012 provides that subject to the Constitution, the Govenor shall appoint with approval of the County Assembly, the County Executive Committee in accordance with Article 179 (2) (b) of the Constitution.
Section 35 of the County Government Act, 2012 states that in performing the function under Sub section 2, the governor shall inter alia promote democracy, good governance, unity and cohesion within the County.
Section 35 of the County Government Act, 2012 provides that a person may be appointed as a member of the County Executive committee if that person satisfies the requirements of Chapter Six of the Constitution and has knowledge, experience and a distinguished career of not less than five years in the field relevant to the portfolio of the department to which the person is being appointed.
Section 7(8) of the Public Appointment (County Assemblies Approval) Act, 2017 provides that approval hearings shall focus on a candidate’s academics credentials, professional training and experience, personal integrity and background.
Section 8 of the Public Appointment (County Assemblies Approvals) Act 2017 provides that the issues for consideration by the relevant County Assembly in relation to any nomination shall be inter alia Constitutional or statutory requirements relating to the office in question and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination being made.
Section 10 of the Public Appointments (County Assemblies Approvals) Act 2017 provides that where nomination of a candidate is rejected by a County Assembly, the appointing authority shall submit to the County Assembly the name of another candidate, and the procedure for approval specified in this Act shall apply accordingly.
Section 10 of the Public Service (Values and Principles) act,2015 provides for the Principles and values of Public Service to include inter alia fair competition and merit as the basis of the appointment and promotion.
THE FACTS
That the Petitioners herein are Kenyan Citizen and Resident of Siaya County and that the 1 st Petitioner has deponed to the facts in support of the petition as hereunder.
That the Petitioners are registered voters in St. Teresa’s Primary School, Yala Township Ward, Gem Constituency in Siaya County.
That the Respondent was elected as the Governor of Siaya County on 9 th August 2022 and has taken oath of Office to execute his mandate as per the Constitution of Kenya and the relevant laws.
That pursuant to Article 179(2) (b) of the Constitution and the provisions of Section 5(1) of the Public Appointments (County Assembly Approval) Act, 2017, the H.E the Governor placed an advertisement for the position of the County Executive Committee members.
That key among the requirements were that the Applicants should:
Be in possession of a first degree in the relevant field from a recognized university in Kenya.
Have knowledge, experience and distinguished career of not less than ten (10) years in relevant filed to the portfolio of the departments to which the candidate is seeking to be appointed.
That pursuant to Section 6(1) of the public Appointments (County Assemblies Approval) Act, 2017, the 1 st Respondent submitted the names of the ten persons nominated to wit; the 4 th to 12 th Respondents to the 2 nd Respondent for vetting and approval.
That 3 rd Respondent then submitted the list of nominees to committee on appointments, which is one of the select committees established under standing order No. 195 of the County Assembly of Siaya, for consideration and for approval by the 3 rd Respondent as per the provisions of Article 179(2) (b) of the Constitution of Kenya.
That the committee on appointments under the Chairmanship of the 3 rd Respondent conducted its vetting and approval of the ten nominees and on its report rejected all the ten nominees submitted by the 1 st Respondent and made, inter alia; the following recommendations:
Pursuant to the provisions of Section 35(4) of the County Government Act, 2012 which states that a member of the County Executive Committee shall not hold any other state or public office, the committee advises the appointing authority to ensure that any nominee who is currently holding a public or state office provides evidence of resignation before appointment.
The appointing authority is further counselled to refrain from appointing any nominee who may be having any pending judicial issues until verifiable conclusions of such matter is presented.
The committee recommends that where a nominee is found to have laid under oath, no substantive appointment by the governor should be made until the nominee is cleared of such offence.
The committee strongly recommends that where there were skills and experience gaps observed in any nominee, the appointing authority should strive to realign the nominee’s knowledge and experience to relevant portfolio.
That the aforesaid report was tabled and debated before the membership of the 2 nd Respondent and the same was approved in its entirety.
That despite the aforesaid recommendations by the select Committee of the 2 nd Respondent and adoption of the same by the full membership of the 2 nd Respondent, the 1 st Respondent proceeded to appoint and swear in as Siaya County Executive Committee members the 4 th to 12 th Respondent on 28/11/2022,
That the aforesaid nomination, approval and appointment of the 4 th to the 12 th Respondents by the 1 st Respondent and the 2 nd Respondent did not only contravene the key requirements but was also the provisions of Section 35(3) and 35(4) of the County Government Act, 2012 for the following reasons:
The 4 th Respondent , Benedict Abonyo Omollo nominated, approved and appointed CEC for Finance and Economic Planning despite not having a first degree in the relevant filed and or knowledge, experience and distinguished career of not less than ten (10) years and or five (5) years in the relevant filed to the portfolio of the department to which the candidate is seeking appointment. Further, the 4 th Respondent was dismissed from office as the Director for Finance at the judiciary of Kenya in 2014 for misappropriation of Public Funds.
The 5 th Respondent Dr. Caroline P Adhiambo Akinyi Onyango nominated, approved and appointed CEC for water, Environment, Natural Resource and Climate Change despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than ten (10) and or five (5) years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the 5 th Respondent while under oath did, according to the findings of the Committee on Appointment of the 2 nd Respondent, gave false and misleading information to during approval hearing thus bringing into question her personal integrity.
The 6 th Respondent, George Odhiambo Nying’iro nominated, approved and appointed CEC for Public Works, Roads, Energy and Transport despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 7 th Respondent, Sylvester Odhiambo K’okoth nominated approved and appointed CEC for Agriculture, Irrigation, Food, Livestock and Fisheries despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 8 th Respondent Dr. Edgar Ouko Otumba nominated, approved and appointed CEC for Education, Youth Affairs, Gender and Social Services despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than ten (10) years and or five (5) years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 9 th Respondent Grace Agol a nominated, approved and appointed CEC for Trade Enterprise and Industrial Development despite not having the first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field or portfolio of the department to which the candidate is seeking appointment. Further, the 9 th Respondent nomination and subsequent appointment did contravene the provisions of Section 35 (1) (a) of the County Government Act, 2012 which makes it mandatory for the 1 st Respondent to, when nominating members of the Executive Committee, ensure that to that his appointments reflects the community and cultural diversity of the County.
The 10 th Respondent Anjeline Atieno Oduor nominated, approved and appointed CEC for Tourism, Culture, sports and Arts despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the 10 th Respondent was, at the time of appearing before the Committee on Appointment of the 2 nd Respondent, still employed at the State Department as the Senior Assistant Secretary – State Department for social protection, Senior Citizen Affairs. Thus, her appointment contravened Section 35 (4) and 35 (2) (c) of the County Government Act, 2012.
The 11 th Respondent, Maurice Otieno McOrege nominated, approved and appointed CEC for land, Physical Planning, Housing and Urban Development despite not having a first degree in the relevant field and or knowledge experience and distinguished career of not less than 10 years or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment.
The 12 th Respondent, CS Agunda Ochanda nominated, approved and appointed CEC for Governance and Administration despite not having a first degree in the relevant field and or knowledge, experience and distinguished career of not less than 10 years and or 5 years in the relevant field to the portfolio of the department to which the candidate is seeking appointment. Further, the committee on appointment of the 2 nd Respondent observed that the 12 th Respondent had applied for the position of CEC member of Enterprise, Trade and industrialization and not CEC member for Governance and Administration which he had been nominated and appointed.
VIOLATIONS OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS AND FREEDOM
The Respondents are in violation of the provisions of Article 10 of the Constitution of Kenya that sets out the national values and principles of governance that binds all state officers, state organs, public officers and all persons whenever they apply or interpret any law, make or implement public policy decisions.
That the 1 st Respondent’s action violates national values and principles of governance which advocates for national unity, the rule of law, participation of the people, equity social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency and accountability, sustainable development.
That the 1 st Respondent’s action of appointing the 4 th to 12 th Respondents contravenes the hallowed principles of leadership and integrity under Article 73 of the Constitution which includes selection on the basis of personal integrity, competence and suitability; objectivity and impartiality in decision making, and ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practises and accountability to the public for decisions and actions.
That the appointment of the 4 th to 12 th Respondents by the 1 st Respondent violates Section 35 of the County Government Act, 2012 which provides that a person may be appointed as a member of County Executive Committee if that person satisfies the requirements of Chapter Six of the Constitution or and has knowledge, experience and a distinguished career of not less than five years in the relevant field to the portfolio of the department to which the person is being appointed.
That the appointment of the 4 th to 12 th Respondents by the 1 st Respondent violates section 8 of the Public Appointments (County Assemblies Approvals) Act, 2017 which provides that the issues for consideration by the relevant County Assembly in relation to any nomination shall be inter alia; Constitutional or statutory requirements relating to the office in question and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination is being made.
That based on the aforesaid, the Respondents have collectively acted in an opaque manner by denying the Petitioners, and the entire residents of the County of Siaya their sovereign rights granted and guaranteed under the Constitution of Kenya 2010.
That the Respondents have collectively acted towards the Petitioners in a manner that is manifestly irresponsible and perniciously to good leadership and governance.
The Petitioner sought for the following reliefs:
A declaration that the 4 th Respondent herein, Benedict Abonyo Omollo , is unsuitable to hold the position the County Executive Committee member for Finance and Economic Planning, Siaya County.
A declaration that the 5 th Respondent herein, Dr. Carloyine P Adhiambo Akinyi Onyango is unsuitable to hold the position the Count Executive Committee member for Water, Environment, natural Resources and Climate member for Public Works, Roads, Energy and Transport, Siaya County.
A declaration that the 6 th Respondent herein, George Odhiambo Nyangiro is unsuitable to hold the position the County Executive Committee member for Public Works, Roads, Energy and Transport Siaya County.
A declaration that the 7 th Respondent herein, Sylevester Odhiambo K’okoth is unsuitable to hold the position the County Executive Committee Member for Agriculture, Irrigation, Food, Livestock and Fisheries, Siaya County.
A declaration that the 8 th Respondent herein, Dr. Edgar Ouko Otumba , is unsuitable to hold the position of the County Executive Member for Education, Youth Affairs, Gender and Social Services, Siaya County.
A declaration that the 9 th Respondent herein, Grace Agola , is unsuitable to hold the position of the County Executive Committee member of Trade, Enterprise and Industrial Development, Siaya County.
A declaration that the 10 th Respondent herein, Anjeline Atieno Oduor is unsuitable to hold the position the County Executive Committee member for Tourism, Culture, sports and Arts, Siaya County.
A declaration that the 11 th Respondent herein, Maurice Otieno Mcorege is unsuitable to hold the position of the County Executive Committee member for Lands, Physical Planning, Housing and Urban Development, Siaya County.
A declaration that the 12 th Respondent herein, CS Agunda Ochanda , is unsuitable to hold the position of the County Executive Committee member for Governance and Administration, Siaya County.
Costs of this Petition be paid by the Respondents.
Any other further relief this Honourable Court may deem fit to grant.
The application was vehemently opposed by the Respondents. Vide a replying affidavit of Phillip Richard Owade dated 3 rd January 2023 on behalf of the 1 st , 4 th – 12 th Respondents, he stated inter alia; that he is the County Attorney and Acting County Secretary of the County Government of Siaya and therefore well conversant with the matter pertaining to the Petition hence competent to swear the affidavit; that the Petition as filed is frivolous, vexatious, irredeemable, incompetent, legally and factually unfounded, hopelessly misconceived and ought to be dismissed in limine; that the burden of proof of the allegations advanced by the Petitioners rests with them and that there is no iota of evidence adduced by them in support of the allegations upon which they seek the court to declare the 4 th to 12 th Respondents unsuitable to hold their respective offices; that the Petitioners have in the circumstances failed to discharge the burden of proof; that in any event, the Petitioners are calling upon this court to declare the 4 th – 12 th Respondents unsuitable to hold the dockets to which they were nominated, approved for appointment and appointed; that the power to determine suitability or otherwise of a person to serve as a county executive committee member is exclusively vested in the County Assembly; that the 4 th -12 th Respondents were all vetted and approved by the County Assembly of Siaya for appointment into the dockets to which they were appointed by the Governor and that this court cannot be called upon to conduct another vetting in the guise of this Petition; that the manner and style with which the Petitioners have fashioned reliefs is such that they are inviting this court to undertake a vetting exercise of the 4 th – 12 th Respondents suitability to hold office; that the only mechanism available in law for determining the suitability or otherwise of the 4 th to 12 th Respondents to hold office is by way of a vetting process which is legally within the domain of the County Assembly and not through a judicial process; that the County Assembly of Siaya having found the 4 th – 12 th Respondents suitable to hold office in the respective dockets to which they were nominated and subsequently appointed, this court cannot be way of this Petition adjudge them unsuitable to hold office; that this is not a matter that is within the jurisdiction of this court; that the fact that the Petitioners are not challenging the Assembly’s exercise of its vetting powers or process by which the vetting and approval of the 4 th – 12 th Respondents was conducted by the County Assembly, then the petition is without any basis; that any temptation by the court to look into the merits of the decision of the County Assembly or suitability or otherwise of the said Respondents to serve in their respective dockets would be nothing but a violation of the principles of separation of powers; that once the County Assembly has exercised its Constitutional and statutory powers of approval of the 4 th -12 th Respondents for appointment as County Executive Committee members, this court cannot interrogate the decision of the Assembly pursuant to which the 4 th to 12 th Respondents were approved; that in the event that the court makes a determination that 4 th – 12 th Respondents are unsuitable to hold office, then that determination would have the effect of removing the said 4 th -12 th Respondents from office, a matter which would not only be in violation of the principles of separation of powers but also outside the jurisdiction of this court; that the process of removal of a member of the County Executive Committee from office is well laid out in law and at no point does it begin with courts; that no evidence has been adduced to demonstrate that the County Assembly either exercised its powers of approval improperly, illegally or unprocedurally or that it considered irrelevant matters or ignored the issues raised by the Petitioners in this Petition in the course of vetting; that in any event, the vetting process was done in an open and transparent manner and that the Petitioners were aware when the said vetting exercise was being conducted and that they had the opportunity to ventilate their views before the County Assembly’s appointments Committee; that the fact that the Petitioners did not submit their said concerns before the County Assembly appointments committee and which they now raise in this Petition means that they are in breach of the exhaustion principle and therefore underserving of any audience before this court; that in the circumstances, the vetting and approval of the 4 th -12 th Respondents by the County Assembly and their subsequent appointment by the Governor into the dockets to which they were nominated was open, transparent, regular, procedural and legal and that the Petition is only an attempt by disgruntled elements to derail service delivery to the detriment of the people of Siaya County; that it is in the interest of justice and the people of Siaya who are the consumers of the services delivered by the 1 st , 4 th to 12 th Respondents that the Petition be dismissed; that being that the court cannot take the position of the County Assembly in vetting the 4 th – 12 th Respondents with a view of determining their suitability or otherwise to serve in the office of the County Executive Committee Member, this court is without any jurisdiction to either entertain the Petition or even grant the reliefs sought by the Petitioners; that for the foregoing reasons, the instant Petition dated 15 th December, 2022, is incompetent, frivolous, vexatious and lacks merit and that this Honourable court should dismiss it forthwith.
The petition was canvassed by way of written submissions.
Petitioners submissions are dated 17/3/2025 while the 1 st , 4 th – 12 th Respondent are dated 6/5/2025 and those of the 2 nd and 3 rd Respondents are dated 22/4/2025.
The Petitioners vide their submissions reiterated their prayers in the petition and seek that this court should grant them in their entirety.
Learned counsel for the Petitioners raised two issues for determination.
Whether this court has jurisdiction to determine the issues raised in the instant petition.
Whether the 1 st , 2 nd and 3 rd Respondents were in violation of any provisions of the Constitution or any written law with regard to the nomination, vetting and approval of the 4 th – 12 th Respondents to various positions of the County Executive Committee members, Siaya County and if so, whether the 4 th to 12 th Respondents are suitable to hold their respective positions as County Executive Committee members, Siaya County.
As regards the first issue, it was submitted that the doctrine of separation of powers postulates that each organ of government is independent and none should interfere with the functions of the other. That this doctrine also holds that each organ is to act as a check and balance of the other to ensure that each organ functions within the provisions of the Constitution or statute and that it is only the High Court, which is a creature of the Constitution, that is empowered to determine the Constitutionality or otherwise the functions of the other state organs. Reliance was placed on Article 165 (d) of the Constitution of Kenya 2010 which vests on the High Court the jurisdiction to hear and determine any question in respect to the interpretation of the Constitution including the determination of inter alia; the question whether any law is consistent with or in contravention of the constitution; the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of, the constitution or any matter relating to the constitutional powers of the state organs in respect of county governments; any matter relating to the constitutional relationship between levels of government.
Further, it was submitted that Article 23 of the Constitution of Kenya 2010 empowers the High Court to har and determine applications for redress of a denial, violation or infringement of, threat to, a right or fundamental freedom in the bill of Rights.
It was submitted that all persons and institutions are subject to review by the High Court in exercise of its jurisdiction to safeguard the principles and values of the Constitution and to uphold its supremacy.
Reliance was placed on the case of John Mining Temoi & Another v Govenor of Bungoma County & 17 others [2014] eKLR, where the court while referring to the case of John Kipng’eno Koech & 2 Others Vs. Nakuru County Assembly & 5 Others [2013] eKLR, held that:
“As such the court has jurisdiction to determine the constitutionality of the process of selection, nomination, approval as well as any appointment by the County Public Service Board, the Govenor or by the County Assembly. The scope of the court’s jurisdiction extends to the procedural improprieties, as well as the legality of the appointment decision to determine whether they accord with the constitutional threshold.”
Basing on the above citations, the Appellants submitted that this court is constitutionally clothed with the jurisdiction to hear and determine the present petition and urges the court to find as such.
As regards the second issue, it was submitted that the petitioners are challenging the appointment of the 4 th -12 th Respondents as members of the County Executive Member Siaya County on grounds that the appointments were done without adherence to the laid down procedures in that the persons appointed did not qualify and or meet the statutory requirements for such appointment. Further it was submitted that it is a requirement under the Constitution that state organs, state officers and in all their decisions, or activities must reflect the national values and principles of governance stipulated under Article 10 of the Constitution of Kenya 2010 which states:
“10(1) The national values and principles of governance in this article bind all state organs, state officers, public officers and all persons whenever any of them…. (a) applies or interprets this constitution, (b)enacts, applies or interprets any law; or (c) make or implements public policy decisions. (2) The national values and principles of governance include - patriotism, national unity, sharing and devolution
[...truncated]