Background
1. James Omariba Nyaoga (the Petitioner) was appointed as Clerk, County Assembly, Kisii on or around 30 March 2014.
2. On 25 July 2022, the Speaker of the County Assembly issued a show-cause notice to the Petitioner. On 24 August 2022, the Speaker notified the Petitioner that the County Assembly Service Board had met on 22 July 2022 and resolved that he be suspended from office.
3. The Petitioner moved the Court through Kisumu Petition No E036 of 2022, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors, to challenge the suspension.
4. In a Ruling delivered on 23 November 2022, the Court declined to assume jurisdiction because the Petitioner had not exhausted the pre-litigation statutory appellate processes. The Petitioner being aggrieved with the Ruling filed a Notice to Appeal on 2 December 2022).
5. On 3 January 2023, the Petitioner requested the Board to review its decision to suspend him, but there was no response until 3 April 2024, when the Board invited the Petitioner to appear for a disciplinary hearing.
Proceedings before this Court
6. The Petitioner thus moved the Court on 15 May 2024, alleging that the Respondents had violated his rights to fair hearing (Article 50 of the Constitution), fair administrative action (Article 47) and fair labour practices (Article 41).
7. Filed together with the Petition was a Motion under a certificate of urgency seeking interim relief. The Court directed the Petitioner to serve the Respondents.
8. The 1st to 3rd Respondents filed a response to the Motion and Petition on 20 May 2024. They also filed submissions on the Motion on the same day.
9. When the Petition was mentioned on 21 May 2024, the Court directed that both the Motion and Petition be taken together. The Court gave directions on the filing and exchange of responses and submissions.
10. The 1st to 3rd Respondents filed their submissions to the Petition on 28 May 2024.
11. In the submissions, these Respondents identified the Issues arising as:
(i) Mootness.
(ii) Whether the Court has jurisdiction?
(iii) Whether the Petitioner had made a case for grant of orders sought?
12. The Petitioner filed a further affidavit and submissions on 14 June 2024. He filed a supplementary affidavit on 24 June 2024 (the Court admitted the affidavit).
13. The Petitioner identified the Issues for adjudication as:
(i) Whether the Court has jurisdiction?
(ii) Whether the 1st Respondent was properly constituted at the time it passed a resolution to suspend the Petitioner?
(iii) Whether the Respondents violated the Petitioner’s rights to fair labour practices and the right to fair administrative action?
(iv) Whether the Petitioner is entitled to the reliefs sought?
14. On the same day, the Court granted leave to the Public Service Commission to file and serve a response and submissions before 28 June 2024.
15. The Public Service Commission filed a Notice of Preliminary Objection and submissions on 22 July 2024 (should have been filed and served on or before 28 June 2024).
16. The responses and submissions were not filed within the agreed timeline, and no explanation for the late filing has been offered.
17. The Court further notes that despite the late filing of the Notice of Preliminary Objection, the Public Service Commission did not seek leave. This would have granted an opportunity to the Petitioner to put a reply to the Issues raised in the Preliminary Objection.
18. The Notice of Preliminary Objection and submissions by the Public Service Commission are expunged from the record.
19. The Court has given due consideration to the Petition, Motion, affidavits and submissions on record.
Jurisdiction
20. The Petitioner initially challenged his suspension through the letter dated 24 August 2022, and he moved the Court in Kisumu Petition No. E036 of 2022, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors, challenging the suspension.
21. The remedies sought by the Petitioner were primarily meant to countermand the disciplinary process and suspension.
22. When served, the Respondents raised a Preliminary Objection contesting the Court’s first instance jurisdiction.
23. In a Ruling delivered on 23 November 2022, the Court declined to assume jurisdiction. The Petitioner appealed against the Ruling.
24. Pursuant to the Ruling, on 8 December 2022, a reconstituted Board reviewed the charges and suspension against the Petitioner.
25. The Court of Appeal, however on 31 January 2023, stayed the disciplinary process pending the determination of the Appeal.
26. In a judgment delivered on 8 December 2023 in Kisumu Civil Appeal No. E034 of 2023, James Omariba Nyaoga v Kisii County Assembly Service Board & Ors, (reported as 2023) KECA 1540 (KLR), the Court found no merit in the Appeal and dismissed it.
27. In the said judgment, the Court of Appeal made a finding:
It is also on record that the 3rd respondent, did in line with the court’s order, review the charges contained in the show cause letter and suspension; and affirmed the same with variation on suspension terms, and the appellant was invited to respond to said new charges.
From this, it is clear to us that the appellant has not exhausted the available remedies as the original charges have been varied and the appellant has been invited to respond to said charges. Indeed, we echo what was pointed out by the trial court that section 9 of the said regulations provides that the commission may hear appeals against any decision regarding the engagement of any person in a county government including inter alia, disciplinary control such as dismissal and imposition of any other administrative punishment. These regulations have a settling effect on the question as to whether the appellate processes set out in Section 77 of the County Government Act is applicable to both staff employed by the County Public Service Board and the County Assembly Service Board. We do not detect any error in application of the law, or in application of legal principles on the part of the trial Judge. We thus find that the trial Judge was not at fault in finding that the court lacked jurisdiction for want of the appellant exhausting all available remedies before directly invoking the court’s jurisdiction.
28. In the instant Petition, the reliefs sought by the Petitioner are:
(i) A declaration be issued that the decision of the 1st Respondent suspending the Petitioner from office was unlawful, wrongful, illegal, inconsequential, in breach of the rules of natural justice and constitutes abuse of power and discretion.
(ii) An order to bring into this Court and quash the decision of the Respondents contained in the meeting of 22nd July 2022 and the letter dated 24th August 2022.
(iii) An order of permanent injunction restraining the Respondents or their employees, agents, representatives or any other person acting at their behest from suspending the Petitioner from office or communicating any other disciplinary action against him based on the resolution of the 1st Respondent dated 22nd July 2022 or the notice to show cause dated 25th July 2022.
(iv) A declaration that the Respondents have breached the Petitioner’s constitutional rights to fair administrative action and fair labour practices.
(v) A declaration that the impugned decision vide a suspension dated 24th day of August 2022 in which the 1st and 3rd Respondents purported to send the Petitioner on an indefinite suspension was arrived at unilaterally and without requisite jurisdiction and consequently constitute a violation of Articles 2(2), 10(2), 27(1) and (2), 41, 47, 50(1) and 232 of the Constitution, 2010.
(vi) A permanent injunction restraining the 1st and 3rd Respondents jointly, by themselves, agents, servants, employees and even members of the County Assembly from commencing disciplinary action, disciplining, suspending, preventing, barring, restricting and or interfering with the Petitioner’s performance, discharge and or execution of his duties as the Clerk of the County Assembly of Kisii without due regard to the provisions of sections 22 and 23 of the County Assemblies Services Act, 2017.
(vii) An order directing the 1st and 3rd Respondents, the acting Clerk, Deputy Clerk, their agents, servants, employees and persons claiming authority to immediately open and give unrestricted access of the offices and office premises to the Petitioner and all staff and employees serving in the office of the Clerk, County Assembly of Kisii.
(viii) An order that the Respondents pay the Petitioner general, aggravated and exemplary damages for breach of his Constitutional rights.
(ix) Any further order that this Honourable Court may deem fair and just to grant in the circumstances of this case as the primary curator of the Constitution.
29. The cause of action advanced by the Petitioner in the instant case as gleaned from the reliefs stems out of decisions made on 22 July 2022, 25 July 2022 and 24 August 2022.
30. These challenged decisions were the subject of this Court’s Ruling on 23 November 2022. In the Ruling, the Court declined jurisdiction.
31. The Petitioner was aggrieved and he appealed to the Court of Appeal.
32. The Court of Appeal dismissed the Appeal primarily on the ground that the Petitioner had approached the Court before exhausting the appellate process outlined in the County Governments Act and the Public Service Commission Act.
33. In its judgment, the Court of Appeal noted that the Respondents had varied the charges against the Petitioner and that he had been invited to respond to the charges.
34. The Respondents asserted that the Petitioner failed to disclose that a reconstituted Board met on 8 December 2022, and resolved to adopt the charges against him and vary the terms of suspension.
35. The record indicates that Petitioner was requested to respond to the charges through a letter dated 15 December 2022.
36. The Petitioner ought to have made a disclosure that the Board in place now had restarted the disciplinary process in line with the Courts directions.
37. It is not in dispute that the Court of Appeal stayed the disciplinary process on 31 January 2023 and judgment was delivered on 8 December 2023.
38. It is, therefore, incorrect for the Petitioner to contend that the Public Service Commission failed to process his appeal of 28 November 2022, and consequently, he had no other option but to approach this Court.
39. Without a doubt, the Constitution has guaranteed every person certain rights including the rights to fair administrative action, fair hearing, fair labour practices and protections under due process.
40. However, where it is asserted by the relevant authority or body that a person has not kept fidelity to the Constitution or other applicable legal instruments, the same Constitution and other laws contemplate removal from office.
41. In the case of the Petitioner, apart from the Constitution, the County Governments Act, the County Assemblies Services Act and the Public Service Commission Act have set out the framework for disciplining persons situated in the same category as the Petitioner.
42. The framework includes a disciplinary process and an appellate process.
43. At the time the Petitioner invoked the jurisdiction of this Court, the stay order issued by the Court of Appeal had been overtaken by events as the Appeal had been dismissed.
44. The option available to the Petitioner was to undergo the disciplinary process by the Board in place and, thereafter, if not satisfied with the decision, invoke at the first instance the appellate process or mandate given to the Public Service Commission by Article 234(2)(i) of the Constitution.
45. The Petitioner did not demonstrate any exceptional circumstances that would have led to the invocation and assumption of jurisdiction by the Court.
46. Before concluding, the Court notes that the delivery of this judgment was brought forward from 18 September 2024, to today with notice to the parties.
Orders
47. From the foregoing, the Court holds that the Petitioner invoked its jurisdiction prematurely.
48. The Petition is struck with costs to the Respondents.
1. James Omariba Nyaoga (the Petitioner) was appointed as Clerk, County Assembly, Kisii on or around 30 March 2014.
2. On 25 July 2022, the Speaker of the County Assembly issued a show-cause notice to the Petitioner. On 24 August 2022, the Speaker notified the Petitioner that the County Assembly Service Board had met on 22 July 2022 and resolved that he be suspended from office.
3. The Petitioner moved the Court through Kisumu Petition No E036 of 2022, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors, to challenge the suspension.
4. In a Ruling delivered on 23 November 2022, the Court declined to assume jurisdiction because the Petitioner had not exhausted the pre-litigation statutory appellate processes. The Petitioner being aggrieved with the Ruling filed a Notice to Appeal on 2 December 2022).
5. On 3 January 2023, the Petitioner requested the Board to review its decision to suspend him, but there was no response until 3 April 2024, when the Board invited the Petitioner to appear for a disciplinary hearing.
Proceedings before this Court
6. The Petitioner thus moved the Court on 15 May 2024, alleging that the Respondents had violated his rights to fair hearing (Article 50 of the Constitution), fair administrative action (Article 47) and fair labour practices (Article 41).
7. Filed together with the Petition was a Motion under a certificate of urgency seeking interim relief. The Court directed the Petitioner to serve the Respondents.
8. The 1st to 3rd Respondents filed a response to the Motion and Petition on 20 May 2024. They also filed submissions on the Motion on the same day.
9. When the Petition was mentioned on 21 May 2024, the Court directed that both the Motion and Petition be taken together. The Court gave directions on the filing and exchange of responses and submissions.
10. The 1st to 3rd Respondents filed their submissions to the Petition on 28 May 2024.
11. In the submissions, these Respondents identified the Issues arising as:
(i) Mootness.
(ii) Whether the Court has jurisdiction?
(iii) Whether the Petitioner had made a case for grant of orders sought?
12. The Petitioner filed a further affidavit and submissions on 14 June 2024. He filed a supplementary affidavit on 24 June 2024 (the Court admitted the affidavit).
13. The Petitioner identified the Issues for adjudication as:
(i) Whether the Court has jurisdiction?
(ii) Whether the 1st Respondent was properly constituted at the time it passed a resolution to suspend the Petitioner?
(iii) Whether the Respondents violated the Petitioner’s rights to fair labour practices and the right to fair administrative action?
(iv) Whether the Petitioner is entitled to the reliefs sought?
14. On the same day, the Court granted leave to the Public Service Commission to file and serve a response and submissions before 28 June 2024.
15. The Public Service Commission filed a Notice of Preliminary Objection and submissions on 22 July 2024 (should have been filed and served on or before 28 June 2024).
16. The responses and submissions were not filed within the agreed timeline, and no explanation for the late filing has been offered.
17. The Court further notes that despite the late filing of the Notice of Preliminary Objection, the Public Service Commission did not seek leave. This would have granted an opportunity to the Petitioner to put a reply to the Issues raised in the Preliminary Objection.
18. The Notice of Preliminary Objection and submissions by the Public Service Commission are expunged from the record.
19. The Court has given due consideration to the Petition, Motion, affidavits and submissions on record.
Jurisdiction
20. The Petitioner initially challenged his suspension through the letter dated 24 August 2022, and he moved the Court in Kisumu Petition No. E036 of 2022, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors, challenging the suspension.
21. The remedies sought by the Petitioner were primarily meant to countermand the disciplinary process and suspension.
22. When served, the Respondents raised a Preliminary Objection contesting the Court’s first instance jurisdiction.
23. In a Ruling delivered on 23 November 2022, the Court declined to assume jurisdiction. The Petitioner appealed against the Ruling.
24. Pursuant to the Ruling, on 8 December 2022, a reconstituted Board reviewed the charges and suspension against the Petitioner.
25. The Court of Appeal, however on 31 January 2023, stayed the disciplinary process pending the determination of the Appeal.
26. In a judgment delivered on 8 December 2023 in Kisumu Civil Appeal No. E034 of 2023, James Omariba Nyaoga v Kisii County Assembly Service Board & Ors, (reported as 2023) KECA 1540 (KLR), the Court found no merit in the Appeal and dismissed it.
27. In the said judgment, the Court of Appeal made a finding:
It is also on record that the 3rd respondent, did in line with the court’s order, review the charges contained in the show cause letter and suspension; and affirmed the same with variation on suspension terms, and the appellant was invited to respond to said new charges.
From this, it is clear to us that the appellant has not exhausted the available remedies as the original charges have been varied and the appellant has been invited to respond to said charges. Indeed, we echo what was pointed out by the trial court that section 9 of the said regulations provides that the commission may hear appeals against any decision regarding the engagement of any person in a county government including inter alia, disciplinary control such as dismissal and imposition of any other administrative punishment. These regulations have a settling effect on the question as to whether the appellate processes set out in Section 77 of the County Government Act is applicable to both staff employed by the County Public Service Board and the County Assembly Service Board. We do not detect any error in application of the law, or in application of legal principles on the part of the trial Judge. We thus find that the trial Judge was not at fault in finding that the court lacked jurisdiction for want of the appellant exhausting all available remedies before directly invoking the court’s jurisdiction.
28. In the instant Petition, the reliefs sought by the Petitioner are:
(i) A declaration be issued that the decision of the 1st Respondent suspending the Petitioner from office was unlawful, wrongful, illegal, inconsequential, in breach of the rules of natural justice and constitutes abuse of power and discretion.
(ii) An order to bring into this Court and quash the decision of the Respondents contained in the meeting of 22nd July 2022 and the letter dated 24th August 2022.
(iii) An order of permanent injunction restraining the Respondents or their employees, agents, representatives or any other person acting at their behest from suspending the Petitioner from office or communicating any other disciplinary action against him based on the resolution of the 1st Respondent dated 22nd July 2022 or the notice to show cause dated 25th July 2022.
(iv) A declaration that the Respondents have breached the Petitioner’s constitutional rights to fair administrative action and fair labour practices.
(v) A declaration that the impugned decision vide a suspension dated 24th day of August 2022 in which the 1st and 3rd Respondents purported to send the Petitioner on an indefinite suspension was arrived at unilaterally and without requisite jurisdiction and consequently constitute a violation of Articles 2(2), 10(2), 27(1) and (2), 41, 47, 50(1) and 232 of the Constitution, 2010.
(vi) A permanent injunction restraining the 1st and 3rd Respondents jointly, by themselves, agents, servants, employees and even members of the County Assembly from commencing disciplinary action, disciplining, suspending, preventing, barring, restricting and or interfering with the Petitioner’s performance, discharge and or execution of his duties as the Clerk of the County Assembly of Kisii without due regard to the provisions of sections 22 and 23 of the County Assemblies Services Act, 2017.
(vii) An order directing the 1st and 3rd Respondents, the acting Clerk, Deputy Clerk, their agents, servants, employees and persons claiming authority to immediately open and give unrestricted access of the offices and office premises to the Petitioner and all staff and employees serving in the office of the Clerk, County Assembly of Kisii.
(viii) An order that the Respondents pay the Petitioner general, aggravated and exemplary damages for breach of his Constitutional rights.
(ix) Any further order that this Honourable Court may deem fair and just to grant in the circumstances of this case as the primary curator of the Constitution.
29. The cause of action advanced by the Petitioner in the instant case as gleaned from the reliefs stems out of decisions made on 22 July 2022, 25 July 2022 and 24 August 2022.
30. These challenged decisions were the subject of this Court’s Ruling on 23 November 2022. In the Ruling, the Court declined jurisdiction.
31. The Petitioner was aggrieved and he appealed to the Court of Appeal.
32. The Court of Appeal dismissed the Appeal primarily on the ground that the Petitioner had approached the Court before exhausting the appellate process outlined in the County Governments Act and the Public Service Commission Act.
33. In its judgment, the Court of Appeal noted that the Respondents had varied the charges against the Petitioner and that he had been invited to respond to the charges.
34. The Respondents asserted that the Petitioner failed to disclose that a reconstituted Board met on 8 December 2022, and resolved to adopt the charges against him and vary the terms of suspension.
35. The record indicates that Petitioner was requested to respond to the charges through a letter dated 15 December 2022.
36. The Petitioner ought to have made a disclosure that the Board in place now had restarted the disciplinary process in line with the Courts directions.
37. It is not in dispute that the Court of Appeal stayed the disciplinary process on 31 January 2023 and judgment was delivered on 8 December 2023.
38. It is, therefore, incorrect for the Petitioner to contend that the Public Service Commission failed to process his appeal of 28 November 2022, and consequently, he had no other option but to approach this Court.
39. Without a doubt, the Constitution has guaranteed every person certain rights including the rights to fair administrative action, fair hearing, fair labour practices and protections under due process.
40. However, where it is asserted by the relevant authority or body that a person has not kept fidelity to the Constitution or other applicable legal instruments, the same Constitution and other laws contemplate removal from office.
41. In the case of the Petitioner, apart from the Constitution, the County Governments Act, the County Assemblies Services Act and the Public Service Commission Act have set out the framework for disciplining persons situated in the same category as the Petitioner.
42. The framework includes a disciplinary process and an appellate process.
43. At the time the Petitioner invoked the jurisdiction of this Court, the stay order issued by the Court of Appeal had been overtaken by events as the Appeal had been dismissed.
44. The option available to the Petitioner was to undergo the disciplinary process by the Board in place and, thereafter, if not satisfied with the decision, invoke at the first instance the appellate process or mandate given to the Public Service Commission by Article 234(2)(i) of the Constitution.
45. The Petitioner did not demonstrate any exceptional circumstances that would have led to the invocation and assumption of jurisdiction by the Court.
46. Before concluding, the Court notes that the delivery of this judgment was brought forward from 18 September 2024, to today with notice to the parties.
Orders
47. From the foregoing, the Court holds that the Petitioner invoked its jurisdiction prematurely.
48. The Petition is struck with costs to the Respondents.