By Daniel Otieno and Faith Anene, Kisumu
The Court of Appeal in Kisumu has ruled that the Employment and Labour Relations Court (ELRC) did not have the jurisdiction to determine the constitutionality of the removal of the chairperson and members of the Kakamega County Public Service Board (CPSB).
The ruling sets aside then Kakamega Employment and Labour Relations Court judge Justice Jemimah Keli ruling that quashed the impeachment of the board members by the County Assembly of Kakamega.
Those impeached are Chairperson Catherine Omweno and members Stanley Were, Ralph Wangatiah, and Joel Omukoko. Vice-chair Ambrose Subayi and member Sylvia Otunga survived.
“The petition by members of the board succeeds, overall process was flawed as rights of the petitioners as guaranteed as those before the court were violated,” ruled Judge Keli.
The judge declared the decision to remove the board members from office by the county assembly unconstitutional, unlawful and tainted with illegalities.
The judgment of the ELRC dated 6th June, 2024 is set aside and substituted with an order dismissing Kakamega ELRC Petition No. E008 of 2023,”~ Appellate judges
Keli said the presumption of constitutional validity in respect of the application by the governor was extinguished the moment the court issued its judgment.
“Having declared the impugned decision of the county assembly of removal of the petitioners from office unconstitutional and unlawful, the presumption of constitutionality and lawfulness of the assembly’s process and resolutions was extinguished and the orders of stay if granted would be tantamount to enabling further violation of the petitioner’s rights,” the judge ruled.
On Friday, February 7, 2025, Justices Hannah Okwengu, Hellen Omondi, and Joel Ngugi ruled that the case was constitutional and should have been heard by the High Court (constitutional division) rather than the ELRC.
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence,” the ruling states in part
It further reads: “Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given,”
According to the appellate judges, the matter had been brought before the Employment and Labour Relations Court, with the petitioners challenging their removal from office, citing constitutional violations, unfair treatment, and procedural issues.
However, the appellants (Governor Fernandes Barasa and the County Assembly of Kakamega) contended that the ELRC lacked jurisdiction, arguing that the dispute was constitutional in nature, not employment-related.
“We have keenly looked at the record of the superior court, the pleadings by the parties and their submissions before us. It is impossible to deny that this is not a plain vanilla employment dispute between the members of the County Service Board and the County Assembly of Kakamega,” the ruling reads in part
It went on: “What is readily obvious is that the dispute is about the appropriate constitutional and statutory procedures and thresholds for the removal of members of a County Service Board,”
According to the judges, the questions presented in the consolidated appeals before them “do not fall within the meaning of disputes” related to employment and labour relations and that, ELRC did not have jurisdiction to deal with the petition before it and should have allowed the preliminary objection pursued by the respondents before it.
They noted that the matter should have been appropriately placed before the High Court which has unlimited subject matter jurisdiction.
“The issues raised in the petition that was before the ELRC were constitutional in nature and the ELRC did not have jurisdiction to hear and determine them. The judgment of the ELRC dated 6th June, 2024 is set aside and substituted with an order dismissing Kakamega ELRC Petition No. E008 of 2023,” the judges ordered
They also directed that each party to bear its own cost.
End
