JudgmentPeter Otieno Odera, Reginal Owaka Ochola, Antony Gaya Tindi & 116 Others VS Homabay County
Case law
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Division and case type: Employment and Labour Relations CourtJudicial Review
The Employment and Labour Relations Court at Kisumu ruled that the Judicial Review Application No. E032 of 2024 by Peter Otieno Odera and others against Homa Bay County Government, Homa Bay County Service Board, and County Executive Committee Member is res judicata. The court found that the issues raised in this application were the same as those in Judicial Review Application No. E044 of 2023, which was decided on 6 March 2024, and the Respondents had paid Kshs.30,100,620.00, leaving an outstanding balance of Kshs.4,358,414.00. The court dismissed the application with costs, citing that the matter was already resolved in the prior case and the application was an abuse of court process.
Division and case type: Employment and Labour Relations CourtJudicial Review
The Employment and Labour Relations Court at Kisumu ruled that the Respondents, County Executive Member for Finance & Economic Planning and County Public Service Board of Kisumu County, could not purge contempt of court by appearing in court after being found guilty of contempt on 24th September 2024. The court set aside its order sentencing the Respondents to 3 months imprisonment, finding that the Respondents' failure to comply with a court order to pay Kshs.2,539,120, despite multiple promises to settle the debt and being granted time to do so, constituted contempt. The court emphasized that the Respondents' non-payment and lack of concrete steps to resolve the outstanding amount, despite being given multiple opportunities to settle, undermined their claim to purge contempt through mere appearance.
Division and case type: Employment and Labour Relations CourtJudicial Review
The Employment and Labour Relations Court at Kisumu determined that the ex parte applicant's Notice of Motion for orders to compel payment of outstanding arrears, NSSF and NHIF dues, and general damages was not merited. The court found that the applicant had resumed duty after reinstatement in the County payroll, and the Respondents had not failed to honour the decree but were following budgetary procedures and the exchequer system. The court ordered the Respondents to pay the sum of Kshs.210,000.00 within 45 days as per the decree, but declined the other prayers due to lack of evidence showing the Respondents' failure to comply with the judgment.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court addressed two applications seeking to enjoin the Kenya County Government Workers Union Bungoma Branch Executive Committee and Mary Namubuya Murongoro as interested parties in judicial review proceedings. The applicants argued that the orders sought, which relate to the disbandment of the Bungoma NEC and removal of the branch chairperson, prejudiced them by denying them a fair hearing under natural justice. The court determined that judicial review proceedings focus on the legality of decisions, not the merits of the case, and the applicants lacked standing as the Bungoma NEC had been dissolved per union procedures. The court found that the applicants were not proper parties under the rules of natural justice and that the union's internal procedures had exhausted dispute resolution mechanisms.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court addressed an ex parte application seeking to strike out two Replying Affidavits filed by the 2nd Respondent on 5 March 2024 and 9 July 2024, alleging they were incurably defective due to procedural failures, fictitious dates, and non-compliance with the Oaths and Statutory Declarations Act. The court found the affidavits were defective for failing to state the date of oath-taking and being commissioned by unauthorized personnel, but the 2nd Respondent argued the defects were mere technicalities that could be cured under Article 159 of the Constitution. The court ruled the defects were not curable under Article 159 as the affidavits were regulated by specific statutory requirements under the Oaths and Statutory Declarations Act, which the Constitution does not override. The court ordered the expungement of the 5 March 2024 affidavit and set deadlines for the 2nd Respondent to file a response and the ex parte applicants to submit records.
Division and case type: Employment and Labour Relations CourtJudicial Review
The Employment and Labour Relations Court at Kisumu granted judicial review in favor of the Applicant (Otieno, Yogo, Ojuro & Co. Advocates) seeking orders for payment of Kshs.411,988.00 from the County Government of Kisumu (Respondents) based on a certificate of costs issued in ELRC Petition No. E08 of 2020. The court found the Respondents failed to file a response despite being served with the application, leading to the grant of mandamus for payment with interest at 14% per annum from November 21, 2023, and costs. The ruling emphasized the court's duty to use technology for efficient justice under the Constitution and Civil Procedure Rules.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court granted an ex parte application for mandamus against the Ministry of Education, requiring the Permanent Secretary to pay the decretal sum of Ksh.441,042 awarded in a prior employment dispute. The applicant, who was unfairly terminated from a public school, sought orders to compel payment after the respondent refused to honor the court-ordered sum despite having a Certificate of Order dated 14 March 2024. The court found the respondent’s failure to pay constituted an improper exercise of duty under the Fair Administrative Act and ordered payment within 21 days with costs borne by the respondent, citing the applicant’s right to access justice under Article 48 of the Constitution.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court considered an application for judicial review seeking to quash an interdiction letter that removed the applicant as Chief of Gem-Sori location. The applicant alleged the interdiction was based on false allegations of concealment of a death, without due process, and was maliciously motivated. The court found the interdiction was within the Respondents' authority under the Public Service Commission Act, the interdiction was reasonable under Article 47 of the Constitution, and the applicant failed to prove the interdiction was unlawful or malicious. The court denied the reliefs sought, holding that judicial review does not examine the merits of administrative decisions but focuses on procedural compliance, and the applicant had not exhausted internal dispute resolution mechanisms.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court granted judicial review orders to quash a summary dismissal decision by the Migori County Assembly Service Board, finding it unlawful and in breach of constitutional rights. The applicant, a Principal Finance Officer, argued the dismissal was biased, irrational, and violated Articles 236(a)(b), 27(1)(2)(4), 41(1), 47, and 50(1) of the Constitution, with the dismissal letter contradicting the notice to show cause and lacking evidence. The court rejected the respondent's arguments on jurisdiction, exhaustion of remedies, and res judicata, emphasizing judicial review's role in constitutional rights protection.
Division and case type: Employment and Labour Relations CourtJudicial Review
High school teachers elected as Branch Executive secretaries by a trade union were deployed back to teaching by the government entity without following proper procedures. The applicants sought judicial review to quash the deployment order, alleging violations of constitutional rights and lack of due process. The court found that the applicants' employment with the union was lawful under the Recognition Agreement and Code of Regulation for Teachers, and the deployment was authorized by the union's request due to financial constraints. The court rejected the applicants' claims of unlawful removal, ruling that the deployment followed the union's internal procedures and the government entity's statutory obligations.
Division and case type: Employment and Labour Relations CourtJudicial Review
High school teachers elected as Branch Executive secretaries under a union's recognition agreement with the government were recalled to teaching by the government entity (1st Respondent) following union requests due to financial constraints. The applicants sought judicial review to quash the recall, prohibit unilateral removal, and direct salary payments, arguing the recall violated constitutional rights and due process. The court found the applicants' claims of procedural impropriety and lack of legal basis for recall valid, but dismissed the motion due to premature commencement without exhausting internal appeal mechanisms under the Teachers Service Commission Act and CORT regulations.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court dismissed the Applicant's motion for an interim conservatory order, finding it fatally defective for failing to comply with statutory requirements for judicial review proceedings. The Applicant had filed the motion before obtaining leave to apply for judicial review, which is required under Order 53 Rule 1 of the Civil Procedure Rules. The court held that the motion was improperly filed without prior leave, as the Applicant's judicial review application was heard and determined on 13th March 2024, but the motion was filed on 4th March 2024. The court emphasized that the procedural rules governing judicial review must be followed to prevent misuse of court resources and ensure only cases fit for consideration proceed.
Division and case type: Employment and Labour Relations CourtJudicial Review
The Ex-Parte Applicant sought judicial review by way of certiorari to quash the Respondent's decision to summarily dismiss him on 27th October, 2023, and mandamus to reinstate him to his previous position. The Applicant argued the dismissal was tainted by irrationality, procedural impropriety, and abuse of power, citing the Respondent's failure to follow the Employment Act and its HR policy, as well as contempt of court findings. The Respondent opposed, claiming the dismissal followed proper disciplinary procedures after the court's stay order was lifted, and that the position was no longer available due to restructuring. The court did not specify its decision but the motion was premised on the grounds that the Respondent's actions were irregular and abusive.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court considered an ex parte motion by an applicant seeking adoption of computation of unpaid withheld salaries amounting to Kshs. 636,000 and liberty to execute for the amount. The dispute centered on whether salary includes allowances and whether the court was functus officio. The court held that salary, as defined by the order of 16th March 2023, included allowances and that the court retained jurisdiction to address execution matters under Section 34 of the Civil Procedure Act. The court adopted the computation and allowed the applicant to execute for the amount.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court granted mandamus orders compelling the 1st and 3rd Respondents to pay the decretal sum of Kshs. 4,338,062.50 with interest, taxed costs of Kshs. 690,965, and interest on the taxed amount under Order 7 of the Advocates Remuneration Order. The court determined that the Applicant established grounds for mandamus as the Respondents have a public legal duty to comply with court orders, the Applicant made prior demands, and no other adequate remedy exists, despite the Respondents' argument that payment is part of the upcoming budget cycle. The court found no equitable bar and that mandamus should issue on balance of convenience.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court granted an ex parte application for mandamus compelling the Respondent to pay Kshs. 2,592,970 in costs assessed by the Deputy Registrar in ELRC Petition No. 10 of 2015 and certified on October 20, 2016. The court found the application was not premature or res judicata, as the prior judicial review application was remitted for determination on merit. The Respondent's argument that the costs were not payable under section 103 of the Public Finance Management Act was rejected, and the court ordered payment through M/S Julius Juma & Co. Advocates.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court granted an ex parte motion for mandamus against the County Secretary, CEC Member, Finance and Accounting Services, and Chief Officer, Economic Planning, Resource Mobilisation & ICT, ordering them to pay Kshs 1,762,050.00 as party to party costs from Kisumu ELRC Petition No. 23 of 2019. The court found the respondents willfully neglected to satisfy the taxed costs despite being served with the Certificate of Taxation and Certificate of Costs, and failed to respond within the stipulated timelines. The court ordered the respondents to pay the decretal sum with interest and granted costs to the applicants.
Division and case type: Employment and Labour Relations CourtJudicial Review
The court dismissed the applicant's summons seeking leave to apply for a mandamus order to form a Teachers Service Review Committee, ruling that the applicant failed to meet statutory requirements for review requests under the Code of Regulation for Teachers, 2015, including payment of a Kshs 2,000 levy, and did not provide evidence supporting when he became aware of dismissal. The court found the applicant's claim statute-barred under the Employment Act and Public Authorities Limitation Act, as the statutory window for challenging dismissal had expired, and the applicant's failure to pay the review levy rendered his request for review non-existent. The court also noted the applicant's lack of satisfactory explanation for delayed awareness of dismissal and the applicant's failure to address the Commission's assertions about the Review Committee's existence.
Division and case type: Employment and Labour Relations CourtJudicial Review
The Ex parte Applicant sought judicial review of the Migori County Public Service Board's advertisement of vacancies published in the Standard Newspaper on 17th and 18th January, 2024, arguing it was unlawful administrative action violating the Constitution and County Governments Act. The court found the advertisement constituted an unlawful administrative action as it was conducted by individuals without proper authority, contrary to the County Governments Act and the status quo order from the Court of Appeal. The court granted the applicant's relief to quash the advertisement and require the responsible party to refund public sums expended, emphasizing the constitutional right to judicial review under Articles 47, 165(3)(d)(ii), and 258 of the Constitution.
Division and case type: Employment and Labour Relations CourtJudicial Review
The High Court granted leave for judicial review proceedings by Humphrey Okuku Nakitare against the Respondents. The Court allowed the parties up to 8 April 2024 to negotiate an out-of-court settlement after the initial hearing on 5 March 2024, but no agreement was reached. The Court then set a hearing date for 23 April 2024, but the Respondents failed to process payment as required, leading to further deadlines for submissions. The Court found that the ex parte applicant had not obtained a Certificate of Order against the government as required by section 21 of the Government Proceedings Act, rendering the proceedings incompetent. Consequently, the Court struck out the Motion for being incompetent and did not order costs due to the Respondents' failure to file within the agreed timelines.