Apuko v Gaya & 6 others (Petition E022 of 2024) [2026] KEELRC 1423 (KLR) (26 May 2026) (Judgment)

Apuko v Gaya & 6 others (Petition E022 of 2024) [2026] KEELRC 1423 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1423 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Petition E022 of 2024 Nzioki wa Makau, J May 26, 2026 IN THE MATTER OF: ARTICLES 10, 27, 28, 29, 41, 47, 236 & 258(1) THE CONSTITUTION AND IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF: SECTIONS 5, 45 & 46 OF THE EMPLOYMENT ACT OF 2007 AND IN THE MATTER OF: SECTION 12 & 13 OF THE COUNTY GOVERNMENTS ACT, 2012 AND IN THE MATTER OF: SECTION 5, 10, 17, 19, 22, 23 OF THE COUNTY ASSEMBLY SERVICE ACT, 2017 AND IN THE MATTER OF CONTRAVENTION OF SECTION 9(2)(D) OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT 2017 AND IN THE MATTER OF: VIOLATION AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED UNDER ARTICLES 10, 27, 28, 29, 41, 47, 236 & 258(1) OF THE CONSTITUTION Between Faith Adhiambo Apuko Clerk, County Assembly of Homabay Petitioner and Hon. Julius O. Gaya The Speaker, County Assembly of Homabay 1st Respondent Homa Bay County Assembly Service Board 2nd Respondent County Assembly Of Homabay 3rd Respondent Lilian Ogono 4th Respondent Joseph Okoto 5th Respondent Joan Ogada 6th Respondent Raphael Odongo 7th Respondent Judgment 1.The Petitioner through an amended petition dated 26th January 2026 seeks the following orders:(1)A Declaration be issued that the decision of the 1st and 2nd, Respondents to suspend and or terminate the services of the Petitioner, and or otherwise remove her from office without notice, due process and reasons is a threat to the Petitioner’s rights to fair labor practice contrary to Article 41(1) of, right to hearing contrary to Article 50(1), the protections accorded to her by Article 236, undermines the rule of, law, and is a violation of Article 10 of the Constitution on the part of the 1st Respondent and members of the 2nd Respondent.(2)The Court be pleased to find and hold that the 1st Respondent, and the 2nd Respondent have engaged in a malicious scheme of orchestrating the unlawful and unfair suspension, termination, and/or removal of the Petitioner from office in her position as Clerk, County Assembly of Homabay and Secretary to Homabay County Assembly Service Board without basis, notice and or reasons.(3)An Order of Judicial Review, in the nature of certiorari, quashing the letter dated 9th July 2024 written under the hand of the 1st Respondent suspending the Petitioner from office.(4)An Order of Prohibition be issued against the Respondents from removing the Petitioner from office absent any reason and or lawful basis as contemplated by law(5)A Conservatory order be issued restraining the Respondents, Hon. Julius Gaya Speaker County Assembly of Homa bay, the 2nd Respondent – Homa bay County Assembly Service Board and the 3rd Respondent – County Assembly of Homa bay and or any other person acting under and or through them, from illegally or unfairly terminating and/or otherwise removing the Petitioner, Faith Adhiambo Apuko currently serving as the Clerk of the Assembly of Homabay and Secretary of the 2nd Respondent, County Assembly Service Board, from office without due process and without following the statutory process and procedure set out in sections 22 and 23 of the County Assembly Service Act as read with Article 236 of the Constitution of Kenya, 2010.(6)Damages and compensation for threat to and for violation of rights and fundamental freedoms guaranteed under the Constitution of Kenya, 2010.(7)Declaration that the Petitioner is entitled to Exemplary and punitive damages for acts of commission and omission outlined in Paragraph 25A To 25H and the Court proceeds to assess and award damages.(8)A declaration that having been found guilty and convicted of disobedience of court orders they are unfit to hold office.(9)A declaration that convicted felons have no capacity under the Law to conduct Disciplinary hearings.(10)Costs of the suit.(11)Interest on damages and costs.(12)Any other appropriate reliefs, which this court shall deem just and fit to grant. 2.The Petitioner’s case is that by a letter dated 9th July 2024, the 1st Respondent purported to suspend her from the office of Clerk of the Homa Bay County Assembly and Secretary to the County Assembly Service Board without due process, reasons, notice or a hearing. She contends that the suspension was unlawful, malicious and intended to pave way for her removal from office contrary to the Constitution, the Fair Administrative Action Act, the Employment Act and the County Assembly Services Act. The Petitioner avers that she was being victimized for refusing to authorize and facilitate irregular and unaccounted expenditure of public funds allegedly sought by the 1st Respondent and other members of the County Assembly Service Board. According to her, the Respondents intended to remove her from office in order to install a Clerk who would accede to the misuse of public resources. She further contends that the decision to suspend her lacked any lawful basis since the actions complained of had at all material times been undertaken with the approval and direction of the County Assembly Service Board. The Petitioner further avers that following the suspension, the 1st Respondent assumed her functions, convened staff meetings without involving her, and circulated notices directing staff not to deal with her, thereby undermining her office and exposing her to humiliation and victimization. Moreover, it is her contention that the 4th, 5th, 6th and 7th Respondents having been found guilty of contempt on 16th June 2025 cannot continue in office as their conduct breaches Article 10 of the Constitution. 3.In view of the foregoing the Petitioner contends that the Respondents’ disobedience of court orders violated her right to dignity under Article 28 of the Constitution and section 33 (2) of the Leadership and Integrity Act. Additionally, she contends that the Respondents violated section 34 of the Leadership and Integrity Act by bullying and being vindictive, cruel and malicious against her as well as section 35 of the same act by ordering her to make unauthorized payments. 4.In response to the petition the 1st and 3rd Respondents filed grounds of opposition dated 21st July 2024. It is their contention that the Petition is incurably and fatally defective and an abuse of the court process. They assert that the 2nd Respondent was justified in suspending the Petitioner and the Court cannot micromanage the 2nd Respondent in carrying out its disciplinary function. 5.For the 2nd Respondent two replying affidavits by Mr. Joseph Okoto the 5th Respondent and Mr. Raphael Odongo both sworn on 10th February 2026 were filed. The 2nd Respondent’s contention is that, in the exercise of its statutory mandate under the County Assembly Services Act, it identified serious discrepancies in the Petitioner’s administration of budgetary finances while serving as Clerk of the County Assembly and Secretary to the Board. As a result, the 2nd Respondent commenced disciplinary proceedings and, by a letter dated 9th July 2024, suspended the Petitioner and required her to respond to the specified issues. It states that this was followed by a further letter dated 10th July 2024 particularizing the charges against her. The 2nd Respondent states that the Petitioner was granted an opportunity to submit a written defence and was informed that she would thereafter appear before the Board with liberty to be represented by an advocate. With respect to the suspension the 2nd Respondent denies that it was malicious, unlawful or intended to remove the Petitioner from office unfairly. It maintains that the disciplinary process was still at a preliminary stage and that the Petitioner prematurely moved to Court instead of responding to the allegations. The 2nd Respondent further contends that, if the Petitioner had concerns regarding the participation of the Speaker in the proceedings, the law permitted recusal or delegation of the hearing to an ad hoc committee. For the foregoing reason the 2nd Respondent states that the suspension was necessary to facilitate investigations, preserve access to official records and avoid conflict of interest, given that the Petitioner served as Secretary to the Board. It maintains that the County Assembly Services Act grants the Board power to suspend or remove a Clerk from office and that, although the Act does not expressly prescribe the procedure for suspension, such power is incidental to its statutory mandate. The 2nd Respondent further contends that the law provides an elaborate removal process involving the Board, a select committee and the County Assembly, thereby safeguarding the Petitioner’s right to be heard and negating allegations of arbitrariness or malice. It also states that some of the allegations against the Petitioner involved questionable expenditure of public funds and that related anti-corruption proceedings had already been instituted against her by the EACC demonstrating that the disciplinary concerns were not baseless. The 2nd Respondent therefore urges the Court to find that the disciplinary process was lawful, procedurally fair and within its statutory mandate, and to dismiss the Petition. 6.In a further affidavit sworn on 25th March 2026, the Petitioner maintains that the ten-day period granted to respond to the charges was unreasonable because she had been locked out of her office and denied access to documents necessary for her defence. She asserts that the contention that an ad hoc committee would cure the illegality, was false as the entire process was tainted with bias and conflict of interest. She additionally contends that the 4th to 7th Respondents, having allegedly been found in contempt of court orders, were disqualified from participating in disciplinary proceedings against her. The Petitioner further denies approaching court with unclean hands and contends that the criminal proceedings referenced by the Respondents were part of the scheme to remove her from office and could not be relied upon to justify the disciplinary process. 7.The Petition was canvassed by way of written submissions. Petitioner’s Submissions 8.The Petitioner identifies the following issues for determination:1.Whether the suspension on 9th July 2024 was ultra vires, procedurally deficient and violated her constitutional rights;2.Whether the Respondents’ subsequent defenses, the investigation claims, the shifting of charges through the letter dated 8th July 2024 and the EACC allegations are malicious afterthoughts;3.Whether the Respondents’ conviction for contempt of court renders them unfit to hold office or conduct and continue with disciplinary proceedings against the Petitioner as the then speaker had commenced; and4.Whether the Petitioner is entitled to the reliefs sought. 9.On the first issue the Petitioner submits that the suspension letter is ultra vires to the extent that it is unilaterally authored and signed by the 1st Respondent. She submits that the 2nd Respondent is the only body mandated to suspend her asserting that the letter did not indicate that it conveyed the 2nd Respondent’s resolution. Additionally, it is the Petitioner’s submission that the suspension violated Article 236(b) of the Constitution on protection of public officers from dismissal without due process. in support of this position, the Petitioner relies on James Omariba Nyaoga v Chairman Kisii County Assembly & 3 others [2023] KECA 1540, where the Court of Appeal held that courts retain residual jurisdiction to intervene in administrative actions marred by illegality and a disregard for natural justice. Furthermore, the Petitioner submits that the suspension letter was only valid to the extent that it served strictly as a preliminary investigative measure in line with the Supreme Court in the case of Hamisi Bweni Dzila v Kwale County Assembly Service Board (Petition E034 of 2024) [2025] KESC 33 (KLR) (23 May 2025) (Judgment). However, in the present circumstances she contends that the fact that the letter explicitly declared her culpable it was transformed from a preliminary tool to a final punitive sanction. She also asserts that the short ten-day period to present a defence pointed to a predetermination of guilt. 10.On the second issue, the Petitioner submits that the Respondents completely disregarded the disciplinary process for a County Assembly Clerk under sections 22 and 23 of the County Assembly Services Act 2017. She asserts that no charges preceded the suspension letter as is required by section 23(1)(b) of the Act. Additionally, she contends that the suspension letter was vague and baseless. As regards the shifting of goal posts, the Petitioner highlighted the letter dated 8th August 2024, which listed totally different reasons from those in the suspension letter dater 9th July 2024. In view of the foregoing, she submits that the Respondents were engaging in a witch-hunt. In respect of the Respondents’ introduction of cases by the EACC in which she is a party, the Petitioner submits that it is a malicious red herring. She asserts that in the said suits she was wrongly joined, and the recoveries therein involved events predating her tenure. For this reason, she submits that those cases could not form a statutory ground for her removal from office. 11.On the effect of the 4th ,5th, 6th and 7th Respondents being found guilty of contempt, the Petitioner submits that they posses no legal capacity or moral authority to conduct disciplinary hearings against her. She asserts that by disobeying court orders, they breached Chapter 6 of the Constitution, Article 10 of the Constitution and section 33(2) of the Leadership and Integrity Act, all of which underscore the importance of public officers obeying court orders. 12.Concerning the remedies sought, the Petitioner submits that she is entitled to the same given the Respondents’ unlawful actions. She asserts that their action has occasioned her financial prejudice as she has been on half salary without allowances. Consequently, she urges the court to allow the petition. 1st & 3rd Respondents’ Submissions 13.In the 1st and 3rd Respondents’ submissions, they urge the Court to consider, the nullus principle and whether this court has jurisdiction. On the nullus principle, they submit that the existence of two separate employment letters for the petitioner points to serious issues regarding their authenticity and genuineness. They submit that the Petitioner being the principal beneficiary of the impugned documents, cannot seek to benefit from any fraudulent enterprise connected thereto. They assert that no person should benefit from their own wrongdoing. In support of this position, they cite Union of India & others v Major General Madan Lal Yadav (1996) AIR 1340, where the Supreme Court of India affirmed the principle that no person should benefit from his own misconduct. They also rely on Gabriel Mbui v Mukindia Maranya [1993] eKLR, where Kuloba J. held that a party cannot found a claim upon his own wrongdoing or turpitude and that equity demands that a litigant comes to court with clean hands. 14.As regards this court’s jurisdiction the 1st and 3rd Respondents submit that the issues raised fall outside the jurisdiction of the Employment and Labour Relations Court, as they revolve around removal of a statutory office holder under Article 178 of the Constitution. For this proposition they rely on Governor, County Government of Kakamega & 4 Others v Omweno & 12 others [2025] KECA 190 (KLR). 15.The Respondents further submit that the dispute falls within the ambit of Sections 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, which require exhaustion of the appellate mechanism before the Public Service Commission prior to instituting court proceedings. In this regard, they cite the case of Hussein Wanyama Mulebo & 5 others v County Public Service Board & 2 others [2022] eKLR, in support of the proposition that disputes touching on recruitment, selection, appointment and qualifications attached to public office fall within the jurisdiction of the Public Service Commission. Moreover, they assert that jurisdiction can be raised at any stage of the proceedings and that the Petitioner cannot rely on res judicata to defeat the jurisdictional objection. They rely on the decision in the case of Lemita Ole Lemein v Attorney General & 2 others [2020] eKLR for the proposition that jurisdictional issues can be raised even on appeal. 16.Concerning the competence of the Petition, the 1st and 3rd Respondents submit that it is premature and incompetent because the impugned decision of 24th July 2020 merely suspended the Petitioner to facilitate investigations into various allegations and complaints raised against her. They assert that the procedure under section 23 of the County Assembly Services Act only becomes applicable after the Board has resolved to remove the Clerk from office. In view of the foregoing, they submit that the 2nd Respondent acted within its statutory mandate under Section 22 of the County Assembly Services Act, which empowers the Board to suspend or remove the Clerk for reasons including incompetence, gross misconduct, violation of the Constitution, or breach of the Act. 17.As regards the Petitioner’s contention that Article 236 of the Constitution and section 4(3) of the Fair Administrative Actions Act were violated, the 1st and 3rd Respondents submit that there was no violation because at the time of suspension, no final disciplinary action had been taken against the Petitioner. They maintain that the procedural safeguards under those provisions could only arise after the 2nd Respondent commences formal removal proceedings. 18.The 1st and 3rd Respondents further submit that no cogent reasons have been established for the court’s interference with the 2nd Respondent’s lawful investigative prerogative. They rely on the case of Republic v Chief Magistrate Milimani & another ex parte Tusker Mattresses Ltd & 3 others [2013] eKLR as cited in Republic v Inspector General of Police & another ex parte Patrick Macharia Nderitu [2015] eKLR, where the Court held that courts should be slow to interfere with investigative powers unless compelling reasons are shown and that it is premature to determine the outcome of investigations before their conclusion. They also cite the decision in Rebecca Ann Maina v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR and Alfred Nyungu Kimungui v Bomas of Kenya [2013] eKLR, where the Court held that the Employment and Labour Relations Court should not assume managerial functions of employers or stifle legitimate staff administration processes. 19.With respect to the Petitioner seeking reinstatement, they submit that it is not viable as the relationship between the parties has irretrievably broken down and that there is currently a substantive Clerk serving in office. They rely on the decision in the case of Kenya Airways Limited v Aviation & Allied Workers Union Kenya [2014] eKLR, where the Court of Appeal held that courts should not force parties to continue in an employment relationship where trust has irretrievably broken down. They further cite the case of Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR, where the Court emphasized that reinstatement is a rare remedy and ought only to be granted in exceptional circumstances expressly demonstrated by the Court. The Respondents also cite the case of Kenya Revenue Authority v Mwongela (Civil Appeal E268 of 2022) [2025] KECA 262 (KLR), where the Court of Appeal reiterated that reinstatement is not an automatic remedy and that courts must consider whether the employment relationship has become strained before granting such relief. Accordingly, the 1st and 3rd Respondents urge the Court to dismiss the Petition with costs. 2nd, 4th ,5th, 6th and 7th Respondents' Submissions 20.The 2nd, 4th, 5th, 6th and 7th Respondents submit that the Petitioner has conflated the Board’s power to impose a disciplinary suspension with its power to impose an administrative suspension pending investigations and disciplinary proceedings. They submit that the Petitioner’s administrative suspension was intended to create an impartial environment for investigations and disciplinary proceedings and was not actuated by malice. They submit that retaining the Petitioner in office during investigations would have created an untenable administrative conflict because she would have been required to participate in Board meetings concerning her own disciplinary process, take minutes relating to her case, furnish documentary evidence against herself, supervise staff expected to testify, and potentially transmit decisions relating to her own removal to the County Assembly. They draw attention to section 17 of the County Assembly Services Act and section 12 (4) of the County Assembly Service Board. In any case the 2nd, 4th, 5th, 6th and 7th Respondents submit that this Court had already substantively determined the issue of suspension in its ruling delivered on 16th June 2025, wherein the Court recognized the impugned suspension as an administrative suspension. In support of this submission, they rely on the case of James Otieno Ndiege v Judicial Service Commission [2021] KEELRC 1454 (KLR), where Mbaru J. held that suspension from employment is an administrative prerogative intended to remove an employee from the workplace to facilitate investigations. 21.The 2nd, 4th, 5th, 6th and 7th Respondents also cite the decision in the case of Donald C. Avude v Kenya Forest Service [2015] eKLR, where the Court distinguished disciplinary suspension from administrative suspension and held that administrative suspension is a preventive measure intended to safeguard the employer’s interests pending investigations. Further reliance is placed on the case of Dennis Musyoka Mutui v Kwale County Assembly Service Board [2018] eKLR, where Rika J. held that suspension under section 22 of the County Assembly Services Act is administrative in nature and does not require a prior hearing because its purpose is merely to facilitate investigations and prevent interference with the disciplinary process. 22.The 2nd, 4th, 5th, 6th and 7th Respondents further submit that the conservatory and status quo orders obtained by the Petitioner have adversely affected public administration and exposed the County Assembly to substantial financial liability at the expense of taxpayers. They contend that while the Petitioner remained shielded from disciplinary accountability through court orders, several decisions and actions allegedly attributable to her conduct resulted in litigation against the County Assembly and substantial monetary awards. In this regard, they refer to several matters, including PSC County Appeal Nos. 130 and 131 of 2024, Kisumu ELRC Misc. E051 of 2025, Kisumu ELRC Misc. E118 of 2024, and Kisumu ELRC Petition E015 of 2024, where employees allegedly dismissed by the Petitioner successfully challenged their termination and obtained reinstatement and salary arrears. They further refer to Homa Bay HCJR/E009/2025 – John Lennox Kochieng v The Clerk County Assembly Service Board of Homa Bay County Government, in which the Court allegedly awarded Kshs. 83,000,000/- against the County Assembly following claims that deducted insurance premiums had not been remitted. 23.The 2nd, 4th ,5th, 6th and 7th Respondents submit that the Petitioner, through surrogates, instituted multiple proceedings aimed at frustrating the disciplinary process and obstructing persons acting in her office from discharging their functions during her suspension. They refer to Kisumu ELRC Petition E023 of 2024 – Sophia Salim Akinyi v Homa Bay County Assembly & others, Kisumu ELRC JR No. E003 of 2025 – Justin Omondi v County Assembly of Homa Bay & another, and Homa Bay HCCHR Petition E008 of 2025 – David Oloo & another v Homa Bay County Assembly Service Board & others, noting that some of the matters were withdrawn while others were dismissed. 24.The 2nd, 4th ,5th, 6th and 7th Respondents submit that notwithstanding the conservatory orders issued in the present Petition, the Ethics and Anti-Corruption Commission independently investigated some of the allegations against the Petitioner and subsequently preferred criminal charges against her before the Kisii Magistrate’s Court under the Anti-Corruption and Economic Crimes Act. They therefore contend that the disciplinary concerns raised by the Respondents were not frivolous or malicious but involved serious accountability issues warranting investigation. They accordingly urge the Court to find that the Petition lacks merit and to dismiss it with costs. Disposition 25.The Court distils the issues for determination herein to be the following:a.Whether the Court has jurisdiction to entertain the Petitionb.Has the Petitioner made out a case for the grant of relief?c.If so, what reliefs lie? 26.On the first issue, this Court establishes under the weight of precedent and because of the hierarchy of Courts, it has to abide by the decision of the superior courts. On the strength of the decision by the Supreme Court in the case of Hamisi Bweni Dzila v Kwale County Assembly Service Board (Petition E034 of 2024) [2025] KESC 33 (KLR) (23 May 2025) (Judgment) where the Supreme Court held that where an employer, on reasonable grounds, suspects an employee of misconduct, poor performance or physical incapacity, a suspension may be imposed to allow investigation to proceed without exposing the employee to further commission of the allegations. Such a suspension does not equate to removal from office and in such circumstances a full disciplinary hearing is not required before the suspension. The Petitioner having been suspended from office was correct in approaching this Court for relief. The Petition by the Petitioner is properly before this Court. 27.The second issue is on relief. The Petitioner has a slew of reliefs sought, some in the nature of mandamus others in the nature of certiorari and others for payment of damages. As the dispute between the parties is also playing out elsewhere in the realm, the Court finds that it will be restricted to the issue of suspension from office. The suspension was by a letter dated 9th July 2024. In the letter, the 1st Respondent suspended the Petitioner from the office of Clerk of the Homa Bay County Assembly and the position of Secretary to the County Assembly Service Board. This suspension was without notice or a hearing as contemplated in the law. 28.Where the Board considers it necessary to remove the Clerk, the Board is required to frame a charge or charges against the Clerk; forward the statement of the said charge or charges to the Clerk together with a brief statement of the allegations in support of the charges; invite the Clerk to respond to the allegations in writing setting out the grounds on which the Clerk relies to exculpate herself; and invite the Clerk to appear before the Board, either personally or with an advocate as he may opt, on a day to be specified, to exculpate herself. Having failed to do this, the County Assembly Service Board fell in error and caused removal without due process, reasons, notice or a hearing. The finding of this Court is that the suspension of the Clerk was unlawful and contrary to the requirements of natural justice. Given this was the scenario she faced, what are the remedies available? 29.The Petitioner has sought a range of reliefs but the Court being mindful of the fact that there is a Clerk serving in the County of Homabay, will instead grant the Petitioner monetary relief. Granted the manner of removal and the period since the removal, the Court considers that a sum of Kshs. 10,000,000/- will suffice as damages for the illegal and unlawful removal from office. The 1st Respondent orchestrated a removal process that resulted in manifest illegalities yet it was aware of the law relating to the removal of a clerk. 30.The Petitioner is also entitled to costs of this Petition. 31.In the final analysis I enter judgment for the Petitioner against the Respondents for:-a.Kshs. 10,000,000/- (read Kenya Shillings Ten Million only).b.Costs of the suit.c.Interest at 14% per annum on the sum in (a) above from the date of judgment till payment in full.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 26TH DAY OF MAY 2026NZIOKI wa MAKAU, MCIArb.JUDGE