https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1627

Amunga v County Assembly of Vihiga & 4 others (Judicial Review E001 of 2025) [2026] KEELRC 1627 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1627 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Judicial Review E001 of 2025 DN Nderitu, J June 11, 2026 Between Dickson Inonda Amunga Applicant and The County Assembly Of Vihiga 1st Respondent County Government Of Vihiga 2nd Respondent The Governor, County Government Of Vihiga 3rd Respondent The County Chief Officer for Finance & Economic Planning, County Government Of Vihiga 4th Respondent and Vihiga County Public Service Board Interested Party Judgment I. Inroduction 1.In a Notice of Motion (the application) dated 29th March 2025 filed through Nyikuli Shifwoka & Company Advocates, the Applicant is seeking for the following orders –1.That a declaration be and is hereby issued that the 1st Respondent’s Recommendations as contained in its Report dated 12/03/2025 and the letter dated 27/03/2025 from the Deputy County Secretary of the 2nd Respondent directing the Applicant’s supposed (re)deployment from the position of Director Budget Expenditure Control & Policy is in violation of Articles 41(1) & (2)(a) & (b), 47 & 50 of the Constitution of Kenya as well as in clear breach of Sections 5, 17 and 25 of the Employment Act, and consequently not only unconstitutional and illegal for being irregularly summary in nature, but as well ultra vires, unlawful and unfair, and is therefore a nullity.2.That an order of Prohibition be and is hereby issued to prohibit any of the Respondents and or the Interested Party, their agents and or any person from implementing or further implementing or acting on any and or all the contents of the supposed Recommendations as contained in the said 1st Respondent’s Report dated 12/03/2025.3.That an order of Certiorari be and is hereby issued to bring to this court and quash all the Recommendations as contained in and the whole of the said Report of the 1st Respondent dated 12/03/2025 as well as the letter dated 27/03/2025 from the Deputy County Secretary of the 2nd Respondent purporting to direct the Applicant’s (Re)deployment from his position, recovery of the partially paid salary arrears, purporting to invite the EACC to commence supposed criminal investigations into the Applicant’s alleged conduct, sanctioning the Interested Party to conduct unspecified investigations into alleged payroll irregularities as alleged in regard to the Applicant’s pay or the taking of disciplinary action in respect thereto, purporting to establish the violation of Section 185 of the Constitution of Kenya and or recommending the immediate redeployment of the Applicant on the supposed foregoing basis or at all.4.That an order of mandamus be and is hereby issued directing the Respondents and the Interested Party to jointly and severally, and without any further delay, pay the Applicant all pending arrears on account of unpaid salaries as accrued presently to the tune of Kshs1,531,332/= only for services duly rendered as an employee between the year 2013 - 2020. 2.The application is expressed to be brought pursuant to Articles 47 &165(6) of the Constitution, Sections 8 & 9 of the Law Reform Act, Sections 7 of the Fair Administrative Actions Act, and Rule 11 of the Fair Administrative Action Rules, 2024. 3.The application is based on the grounds stated on the face of it and supported with the Applicant’s supporting affidavit sworn on even date, with several annexures thereto. 4.The application was filed pursuant to leave granted by the court on 26th March 2025. 5.In response to the application through Francis Otieno Rakewa, Advocate, the 1st Respondent and Interested Party filed grounds of opposition dated 9th April 2025 and the replying affidavit sworn by Hon Ambaka Kilinga, the 1st Respondent’s clerk on 13th May 2025. The 2nd to 4th respondents filed a statement of opposition dated 30th April 2025, accompanied with a verifying affidavit by Joseph Keverenge, Chief Officer in charge of budget, sworn on even date. 6.When the matter came up for directions on 2nd April 2025 the court issued interim orders prohibiting the Respondents and the Interested Party, their agents, or any other person from implementing or further implementing or acting on any and or all the contents of the recommendations contained in the 1st Respondent’s report dated 12th March 2025 pending the hearing and determination of this matter and or other or further orders of the Court. 7.Arising from the above interim orders, the Applicant filed a Notice of Motion (application for contempt) dated 29th June 2025 seeking for orders that –a.That this Honourable court be pleased to cite 1 ) Vincent Chanzu, The 2nd Respondent’s Deputy County Secretary, 2 ) Jairus Boston Amayi, the 2nd Respondent's CEC Member for Finance and Economic Planning, 3 ) Wilfred Amasakha, The 2nd Respondent's Human Resources Director and 4) Hardson Muzozo, the 2nd Respondent's Human Resource Officer for Health for the Respondents herein and punish them for contempt of court for blatant disregard, disrespect and violation of the Honourable Court's Orders given on 2/04/2025 and issued on 4/04/2025.b.The said Contemnors be condemned in the costs of this application. 8.In opposition to the application for contempt, through the County Attorney, the citees filed a replying affidavit sworn by Vincent Mwamiri Chanzu on 13th October 2025. 9.By consent, both the applications were canvassed by way of written submissions. Mr. Shifwoka, for the Applicant filed written submissions dated 19th October 2025 and 19th November 2025. The Respondents and the Interested Party chose to rely on their filed affidavits and statements without filing of written submissions. II.EVidence 10.The Applicant’s case is that he is an accountant (CPA (K) and MSc Finance Specialist) and has served continuously since 2013 and he is currently holding the position of Director, Budget Expenditure Control and Policy, with the 2nd Respondent. 11.He stated that in the course of his service he accrued salary arrears amounting to approximately Kshs4,600,000/= arising from unpaid remuneration over several years. He asserts that a portion of these arrears, specifically KShs1,531,332/=, was expressly verified and acknowledged as validly due in the Auditor-General’s Special Audit Report for the financial years 2018/2019 and 2019/2020. The prior periods were excluded from review not for invalidity, but for falling outside the scope of the audit. 12.The Applicant states that on or about 30th January 2025, he was invited by the 1st Respondent through its Committee on Finance and Planning to respond to issues allegedly concerning his promotion, deployment, and benefits. He contends that the allegations were vague, unspecified, and largely derived from media reports and public commentary, thereby lacking a proper factual or legal foundation. He avers that in response he furnished a comprehensive written explanation dated 13th February 2025 alongside supporting documentation addressing all issues raised. Despite this, he avers that his response was ignored and not considered. 13.He further asserts that his subsequent appearance before the Committee was a mere formality as the Committee was biased, had pre-judged the matter, and conducted proceedings in a manner that violated the rules of natural justice. He contends that he was not accorded a fair hearing, as the process lacked impartiality, adequate notice of specific charges, and a genuine opportunity to defend himself. He also notes that the 1st Respondent had already publicly expressed its position through media briefings prior to concluding its inquiry. 14.The Applicant states that the 1st Respondent thereafter produced a Report dated 12th March 2025 containing adverse findings and far-reaching recommendations. He emphasizes that this Report was never formally communicated to him and he only became aware of it around 14th March 2025 through social media and third-party inquiries. He contends that the said Report is fundamentally flawed both procedurally and substantively. 15.In particular, the Applicant argues that the 1st Respondent acted ultra vires its constitutional and statutory mandate by purporting to:a.Direct his redeployment from his position, a function vested in the County Executive and the County Public Service Board under the County Governments Act;b.Make conclusive findings of criminal liability and recommend recovery of alleged overpayments without any investigative or judicial process;c.Invite investigative agencies, including the Ethics and Anti-Corruption Commission (EACC), to commence criminal investigations in the absence of any established legal basis; andd.Sanction the Interested Party to initiate disciplinary proceedings while simultaneously making definitive adverse findings, thereby demonstrating bias and procedural impropriety. 16.He further contends that the 1st Respondent misinterpreted and selectively relied on the Auditor-General’s Report, disregarding the fact that the audit had actually validated part of his salary arrears. Additionally, he avers that the 1st Respondent improperly attributed to him responsibility for budgetary processes that are, by law, shared among multiple institutions, including the County Executive Committee Member for Finance, the National Treasury, and the Controller of Budget, thereby unfairly singling him out for actions beyond his mandate. 17.The Applicant states that the impugned recommendations have already triggered adverse administrative action, notably the issuance of a letter dated 27th March 2025, directing his redeployment, as well as threats of salary deductions to recover alleged overpayments. He argues that these actions are being implemented under coercion and apprehension by the Respondents, despite their illegality, and are likely to cause him substantial prejudice, including loss of position, reputational harm, financial loss, and disruption of his professional duties within the County’s budgeting cycle. 18.He maintains that the entire process is tainted by illegality, irrationality, procedural unfairness, and abuse of power, in violation of his constitutional rights under Articles 41, 47, and 50 of the Constitution, as well as the provisions of the Fair Administrative Action Act and the Employment Act. He further asserts that there exists no internal appeal or review mechanism capable of addressing the impugned actions, thereby justifying recourse to the Court’s supervisory jurisdiction under Article 165(6) of the Constitution. 19.In the circumstances, the Applicant seeks judicial review orders to quash the impugned Report and consequential decisions (certiorari), prohibit their implementation (prohibition), and compel payment of the acknowledged salary arrears (mandamus). He contends that unless the Court intervenes urgently, the Respondents will continue to implement unlawful decisions, rendering the proceedings nugatory and occasioning irreparable harm not only to him but also to the integrity of public administration. 20.The 1st Respondent, through the affidavit of Ambaka Kilinga, the Clerk of the 1st Respondent, opposed the application contending that the County Assembly acted lawfully within its constitutional and statutory mandate. It is deponed that the Assembly’s sectoral committees derive authority from the Constitution, the County Governments Act, the National Assembly Powers & Privileges Framework, the Public Finance Management Act, 2012 (PFM Act), and the Standing Orders of the County Assembly. 21.It is deponed that the Committee on Finance and Planning is duly empowered under Section 165 of the PFM Act and Standing Order 209 to investigate, inquire into, and report on matters relating to the management, administration, and operations of county departments. It is further averred that the Committee lawfully invited the Applicant to appear before it via a letter dated 28th January 2025 and he was accorded an opportunity to be heard and to defend himself. 22.It is the Respondent’s position that after due interrogation, the Committee prepared a report which was duly debated and approved by the County Assembly on 12th March 2025, including the recommendations that the Applicant be redeployed for alleged breach of trust and abuse of office in relation to budget upload processes contrary to Assembly approvals. The Respondent maintains that the recommendations were procedural, lawful, and within its mandate. 23.The 1st Respondent further avers that the role of the County Assembly is oversight, and implementation of its resolutions lies with the relevant executive organs of the County Government. The approved report was therefore transmitted to the appropriate authority for implementation. 24.On the legality of the process, it is contended that the Applicant has failed to demonstrate that the Committee acted ultra vires or in breach of statutory authority, insisting that the process complied with Section 165 of the PFM Act and Standing Order 209. It is further asserted that no evidence of bias or procedural impropriety has been presented. 25.It is deponed that the application is frivolous, vexatious, scandalous, and an abuse of court process, as the Applicant was duly heard and afforded all procedural safeguards. It is argued that the Applicant’s grievances are unsubstantiated and do not justify judicial intervention. 26.Accordingly, the 1st Respondent prays that the application be dismissed with costs. 27.The 2nd, 3rd, and 4th Respondents and the interested party collectively opposed both the application for judicial review order and that of contempt, contending that the Applicant’s claims are misconceived, procedurally defective, and an abuse of the Court process that ought to be dismissed with costs. 28.They maintain that the County Assembly acted lawfully and within its constitutional and statutory mandate under the Constitution, the County Government Act, the Public Finance Management Act, 2012 (particularly Section 165), the National Assembly Powers and Privileges framework, the Petitions to County Assemblies (Procedure) Act, No. 15 of 2020, and the Standing Orders of the County Assembly. It is asserted that the Committee on Finance and Planning lawfully investigated matters relating to the Applicant’s conduct, including alleged breaches of trust and irregularities in salary payments and budget implementation. 29.It is the Respondents’ case that the Applicant was duly invited to appear before the Committee, was accorded a fair hearing, and participated in the proceedings before the Committee prepared its report. The report was subsequently debated and duly approved by the County Assembly on 12th March 2025, with recommendations including the Applicant’s redeployment and recovery of alleged overpayments. The Respondents assert that implementation of the recommendations lies with the relevant County Executive organs and not the County Assembly. 30.The 2nd, 3rd and 4th Respondents and the Interested Party further contend that the application is fatally defective for misjoinder and procedural impropriety, including alleged improper institution of judicial review proceedings by “Originating Motion” instead of Notice of Motion under Order 53 of the Civil Procedure Rules, and failure to institute proceedings in the name of the Republic. They also argue that the Respondents, including the Governor and the named County Chief Officer, were improperly joined without demonstrating any actionable role or liability. 31.They further aver that interim stay orders were obtained through material non-disclosure, as the Applicant had already been redeployed within the County Government and investigations by the Ethics and Anti-Corruption Commission (EACC) were ongoing. They state that recovery of alleged overpaid salary arrears had already commenced lawfully, following independent verification and administrative processes supported by Article 226(5) of the Constitution, Sections 149, 156, and 162 of the Public Finance Management Act, and Regulations 139–145 of the Public Finance Management (County Governments) Regulations, 2015. 32.On contempt, the cited contemnors (including Vincent Mwamiri Chanzu) deny having been served with the material court orders or having knowledge of the same as found contempt proceedings. They challenge the affidavit of service and maintain that they have sought leave to cross-examine the process server. They further contend that the actions complained of were undertaken before the court orders were brought to their attention and were part of lawful administrative processes concerning redeployment and recovery of salary paid unlawfully to the Applicant. 33.The Citees also make reference to the ongoing investigations by oversight bodies such as the EACC and asserting that they have always acted in good faith, without any willful or deliberate disobedience of court orders. They argue that compliance with court orders cannot arise where proper service or knowledge is not established. 34.In conclusion, the Respondents maintain that the Applicant has failed to establish any illegality, procedural impropriety, bias, or irrationality in the decision-making process, and that he has equally failed to prove contempt as against the Citees. They therefore pray that both the Applications be dismissed with costs. III.Submissions 35.Counsel for the Applicant submitted globally challenging the legality and constitutionality of the 1st Respondent’s Report and the Recommendations dated 12th March 2025 that directed the Applicant’s redeployment, recovery of alleged salary overpayments, and the initiation of criminal and disciplinary proceedings against him. Counsel argued that the impugned actions were ultra vires, unlawful, irrational, and procedurally unfair. 36.It is submitted that the decision violated Articles 41, 47, & 50 of the Constitution, as well as Sections 5, 17, & 25 of the Employment Act, for subjecting the Applicant to unfair labour practices, unfair administrative action, and denying him a fair hearing. It is argued that the process as executed was fundamentally flawed having been conducted without notice of charges, disclosure of evidence, or giving the Applicant an opportunity to be heard, and all this was contrary to the rules of natural justice. In this regard, counsel cited Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR and Richard Ncharpi Leiyagu v IEBC & 2 others (Nyeri CA No. 18 of 2013) to the effect that the right to be heard is foundational to the rule of law. 37.Counsel for the Applicant further contended that the 1st Respondent acted in excess of its jurisdiction by directing his redeployment, a function statutorily reserved for the County Public Service Board under Sections 72(1) and (2) of the County Government Act, and by purporting to make findings on criminal culpability which function falls within the jurisdiction of criminal courts. Counsel argued that these actions offend the principle of legality and lawful exercise of public power as was articulated in Republic v Disciplinary & Ethics Committee & Medical Practitioners & Dentists Council; Donald Oyatsi (Ex Parte) [2020] KEHC 3139 (KLR), which decision underscored that public power must be exercised lawfully, rationally, and within the scope of conferred lawful authority. 38.On the issue of unreasonableness and irrationality, counsel for the Applicant submits that the impugned decision was not rationally connected to any lawful purpose and the same was based on irrelevant considerations such as the part of the audit report. Counsel cited Republic v Disciplinary & Ethics Committee & Medical Practitioners & Dentists Council; Donald Oyatsi (Ex Parte) [2020] KEHC 3139 (KLR), which adopted the principles from Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) and Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15. Further, counsel cited Wednesbury principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 CA in asserting that a decision is reviewable where it is so unreasonable that no reasonable authority could have made it. 39.The Applicant’s counsel also invoked the doctrine of legitimate expectation, arguing that the Applicant was invited to a consultative meeting that was unlawfully converted into a disciplinary process without due notice or procedural safeguards. Counsel cited Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR wherein the criteria for legitimate expectation was set out. The holding in Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR outlines the two-step test for establishing and enforcing legitimate expectation. 40.Further, counsel for the Applicant submitted that the Respondents failed to dislodge the factual averments by the Applicant, rendering the application substantially unopposed. Counsel cited Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR as applied in Republic v Land Disputes Tribunal Magarini (Defunct) & another; Ngonyo & 4 others (Ex parte Applicants) [2024] KEELC 5235 (KLR), for the proposition that while unopposed applications are not automatically granted, the court may allow them where a prima facie case is established. 41.It is the Applicant’s counsel position that the impugned actions were unconstitutional, illegal, procedurally unfair, irrational, and disproportionate, and that the same violated the Applicant’s legitimate expectations, constitutional and statutory rights. 42.On the application for contempt, it is submitted that the named officers of the 2nd Respondent should be cited and punished for contempt of court for allegedly disobeying interim orders issued on 2nd April 2025 and served on 4th April 2025 restraining the implementation of the 1st Respondent’s Report dated 12th March 2025. 43.Counsel for the Applicant submitted that despite service and full knowledge of the orders, the Respondents through the cited officers deliberately violated the same by redesignating the Applicant, removing him from his position, and effecting salary surcharges purportedly in implementation of the impugned report. It is contended that these acts were willful, continuous, and calculated to undermine the authority and dignity of the Court. 44.On the applicable legal standard, the counsel for the Applicant cited Waweru v Ngama & another; T.O. K’opere & Co. Advocates (Applicant); Managing Director/CEO NCBA Bank (Contemnor) [2025] KEHC 1851 (KLR), wherein Shimmers Plaza Limited v National Bank of Kenya Limited [2015] Eklr was adopted for the proposition that knowledge of a court order, including through counsel, suffices for in contempt proceedings even where personal service is disputed. Counsel argued that in the instant case, both service and actual knowledge have been demonstrated. 45.Counsel further relied on Republic v Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka [2019] eKLR on the principle that non-compliance with court orders constitutes contempt and that continued disobedience, even after initiation of contempt proceedings, aggravates the breach. 46.In establishing the elements of contempt, counsel for the Applicant cited Koilel & 2 Others v Koilel & another [2022] KEHC 10288 (KLR) wherein Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division Case No. 364 of 2005) was cited setting out the essentials as – (i) existence of a valid court order; (ii) knowledge of the order by the respondent; and (iii) failure to comply with the order. Counsel submitted that all three elements have been established and satisfied, as the orders were issued and clear, duly served, and the cited officers knowingly disobeyed the same. 47.Counsel further cited Hadkinson v Hadkinson [1952] All ER 567 as was cited in Koilel & 2 others v Koilel & another (supra) on the principle that court orders must be obeyed at all times unless set aside, even where a party believes the same to be irregular or void. Counsel argued that the Respondents’ continued implementation of the impugned recommendations, without seeking to discharge or vary the orders, amounts to deliberate defiance of the Court’s authority. 48.Counsel contended that the Respondents’ conduct amounts to willful disobedience, disrespect for the rule of law, and affront to the authority of the Court, thereby establishing and confirming contempt. Counsel maintained that the contempt has not been purged and continues unabated, warranting punitive sanctions. 49.Accordingly, the Applicant urges the Court to find the Respondents and the cited officers in contempt, compel them to purge the contempt and, in default, impose appropriate punishment, alongside with costs of the application. IV. Analysis & Determination 50.Upon a careful and considered reading of the application, the affidavit in support, the statement/grounds of opposition, the replying affidavits, the application for contempt, and the written submissions by counsel for the Applicant, alongside all the cited authorities, the following issues commend themselves to the court for determination –a.Whether the 1st Respondent’s recommendations in the report dated 12th March 2025 are ultra vires.b.Whether by issuing a re-deployment letter dated 27th March 2025, the 2nd Respondent’s Deputy County Secretary acted unlawfullyc.Whether the threshold for Certiorari, Prohibition and Mandamus has been met as for the court to issue the orders prayed for in the application.d.Whether the application for contempt has merits.e.Costs. V. Ultra Vires 51.The scope of modern and contemporary Judicial Review examines the lawfulness of the decision-making process as well as the merits of the decision itself. The Court is not only concerned with whether the decision was reached in accordance with the law but also whether the decision arrived at was lawful. The court shall intervene where the process is shown to be flawed on recognized grounds of illegality (acting beyond legal authority), irrationality (making decisions that no reasonable authority would make), and procedural impropriety (failure to follow proper procedures). Further, the court shall set aside the decision if the same is unlawful based on the constitution and the statutes and shall invalidate the decision/action and offer an appropriate remedy – Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR. 52.Judicial review is therefore supervisory in nature, and where it is demonstrated that the decision-maker adhered to proper procedures and acted within the bounds of the law, the Court will not interfere with the decision and the consequences thereof. 53.The 1st Respondent’s Committee on Finance and Planning, pursuant to Standing Order 209(5)(g) of the County of Vihiga Standing orders, made several recommendations in a Report entitled – Report on the interrogation of the conduct of the director budget Expenditure Control and Policy. It is the recommendations in the said report that are challenged in the application. The said report stated as follows –Honourable Speaker,Pursuant to Standing Order 209 (5) (g) which provides that;(5)The functions of a Sectoral Committee shall be to —(g)make reports and recommendations to the County Assembly as often as possible, including recommendation of proposed legislation.The Committee on Finance and Planning made the following recommendations in regard to the conduct of Director Budget Expenditure Control and Policy (Mr. Dickson Amunga)That pursuant to the Public Finance Management Act 2012 Section 98.(1)A public officer commits an offence if that officer— a. takes possession of public funds or assets without lawful authority; b. misappropriates public funds or assets; c. conceals information on public finances to obtain a financial benefit either for the officer or another person; orThe committee having established that Mr. Dickson Amunga acted in violation of the above mentioned Section of the PFM Act, the committee now recommendsThat, the Director (Human Resource) commences the recovery of the illegal salary arrears payment of Kshs 1,531,332 owed by the Director Budget Expenditure Control and Policy (Mr. Dickson Amunga) to the county with immediate effect.That committee invites the Ethics and Anti-Corruption Commission to commence criminal investigations into the conduct of the Director Budget Expenditure Control and Policy (Mr. Dickson Amunga) and take necessary action as by law required.That, the County Public Service Board initiates an investigation into payroll irregularities in regard to Mr. Dickson Amunga’s pay and take appropriate disciplinary action.That, the committee established that Mr. Dickson Amunga acted contrary to the provisions of Section 185 of the Constitution of Kenya which provides for the legislative supremacy of the County Assembly, by unilaterally and irregularly amending a budget after approval by the County Assembly.Article 185 of the Constitution of Kenya 2010 provides that – Legislative Authority of County AssembliesThe legislative authority of a county is vested in, and exercised by, its County Assembly.A County Assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule.A County Assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs.A County Assembly may receive and approve plans and policies for— (a) the management and exploitation of the county’s resources; and (b) the development and management of its infrastructure and institutions.That, the committee recommends that the appointing authority re-deploys the Director Budget Expenditure Control and Policy (Mr. Dickson Amunga) from the Department of Finance and Economic Planning with immediate effect because of breach of trust and abuse of office in relation to uploading of the county budget contrary to approvals by the County Assembly. 54.In a letter dated 8th January 2025 by one Stephen Chahasi Lumwaji, who is described as a human rights defender, addressed to the Interested Party and copied to the Respondents, the Ethics and Anti-Corruption Commission(EACC), and the Director of Criminal Investigations, the Applicant was accused of receiving irregular salary payments. It is this letter that prompted the investigations into the Applicant’s engagement with the 1st Respondent, culminating in the above recommendation. The letter alluded above stated as follows –Stephen Chabasi Luwaji P.O. Box 14–50300Email: stephenlumwaji@gmail.comDate: 8th January 2025TO The Chairperson County Public Service Board Vihiga CountyDear Sir/Madam,Re: ‘suspecious’ Irregular Salary Payments To Mr. Dickson Inonda Amunga – Director, Accounting Services (PF/2013004915*I write in line with Article 35 of the Constitution of Kenya, which gives every Kenyan citizen a right to petition public authorities as read together with Article 10 which solidifies the involvement of the people as one of the national values and principles of governance.I am reliably informed that the County Public Service Board was established under Article 235 of the Kenyan Constitution and Section 57 of the County Government Act.I am writing to request the CPSB to invoke Sections 58, 59 and 60 that mandate it to promote ethics, values and principles of public service, recruit, remunerate, evaluate, promote, discipline and dismiss County Public servants.I, the undersigned, write to inform you of the following:That Dickson Inonda Amunga is an employee deployed in the County Executive and has served as Deputy Chief Economist from January 2022 and later promoted to Director Accounting Services as at October 2024. I seek to inquire into the procedures that informed the change.That Mr. Dickson Inonda has been receiving suspicious additional payments on his pay slips itemized as salary arrears as follows:i.January 2022 – Kshs 510,444 ii. February 2022 – Kshs 510,444 iii. March 2022 – Kshs 510,444 iv. June 2022 – Kshs 244,458 v. January 2023 – Kshs 214,192 vi. October 2024 – Kshs 218,350I have attached hereto copies of pay slips that have been obtained from public domain for your verification, authentication and immediate investigation for possible violation of the law, and take immediate action as per the law.I request to be furnished with results of your findings and action. Failure to do so within 7 days of receipt of this letter will compel me to pursue other remedies, including legal action.Stephen Chabasi Luwaji Human Rights DefenderCc:Governor – County Government of VihigaCounty Secretary – County Government of VihigaCounty Executive Member – Finance and Economic PlanningChief Officer – Planning, Budget, Monitoring and EvaluationThe Clerk – County Assembly of VihigaEACC – KisumuDirector of Criminal Investigations – Vihiga 55.Under Article 185(3) of the Constitution, a county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs. The Applicant served as the Director of Budget, Expenditure Control and Policy, a position under the County Executive and falling under the supervisory and oversight authority of the 1st Respondent. 56.Section 4(5) of the Petition to County Assemblies (Procedure) Act, Cap 274 (the Act) provides that a petition shall not be rejected merely because it is not addressed to the Clerk of a county assembly. Further under Section 5 of the Act – (1) The Clerk shall, if satisfied that the petition meets the requirements specified under this Act, forward the petition to the Speaker for reporting in the county assembly. (2) A petition that is reported in a county assembly under this Act shall be considered in accordance with the Standing Orders of the county assembly. (3) The relevant county assembly committee may, when considering the petition:-(a) invite the petitioner to clarify or submit such further information as the committee may consider necessary; and (b) make a site visit if it is deemed necessary to do so. 57.Standing order No. 209 of the County Assembly of Vihiga Standing Orders (3rd Edition) echoes the above provision that a Sectoral Committee nominated by the House Business Committee may investigate and make reports and recommendations to the County Assembly on all matters relating to an assigned department. 58.Further, Section 18 of the County Assemblies Powers and Privileges Act No. 6 of 2017 provides for the process of inviting and summoning of witnesses before either a county assembly or any of its committees as follows –(1)A county assembly or its committees may invite or summon any person to appear before it for the purpose of giving evidence or providing any information, paper, book, record or document in the possession or under the control of that person and, in this respect, a county assembly and its committees shall have the same powers as the High Court as specified under Article 195 of the Constitution.(2)A summons issued under subsection (1) shall be issued by the Clerk on the direction of—(a)the Speaker; or(b)the chairperson of a committee acting in accordance with a resolution of the committee…. 59.Through a letter dated 28th January 2025, the Applicant was invited to appear before the 1st Respondent’s Committee on Finance with instructions to carry relevant payslips, letters of promotion, deployment letters, and other relevant documents. 60.The Applicant’s position is that he responded to unspecified allegations through his letter of 13th February 2025, based on allegations he picked from the 1st respondent’s media briefing of 7th February 2025. However, the Applicant confirms that he appeared before the Committee on Finance on a different date after the initial meeting was adjourned. The applicant’s position is that he appeared before a partial, biased, and opinionated committee. The Applicant further asserts that he was not notified of the 1st Respondent’s Committee recommendations contained in the Report, and only became aware of them through media reports. 61.From the evidence on record, the first meeting of the Committee of Finance that was to be held on 12th February 2025 was rescheduled to 27th February 2023. The Applicant confirmed of his appearance before the said Committee on the later date. 62.In his response to the 1st Respondent’s Committee invitation dated 13th February 2025, the Applicant acknowledged that in his response he relied on the allegations set out in the letters referenced VCA/ADM/LEG/FIN/24/8 VOL. II/05 and VCA/ADM/ST/CPSB/4/1 VOL. II/23, both dated 30th December 2024 and addressed to the County Executive. This position is inconsistent with his assertion that he was unaware of the allegations/charges against him. Notably, there is no indication in his response that the allegations originated from social media, as he claims in his pleadings filed in court. 63.With regard to the allegation that he was denied an opportunity to be heard, the record shows that the Applicant not only appeared before the Committee for oral questioning but also submitted a written response for consideration. At no point did the Applicant raise any complaint that he had been ambushed or taken by surprise by the issues raised during the proceedings. 64.Section 5(4) of the County Assemblies Powers and Privileges Act provides that – The relevant county assembly committee shall respond to the petitioner by way of a report addressed to the petitioner and tabled in the county assembly, and no debate on or in relation to the report shall be allowed except on the recommendation of the chairperson of the committee and with the approval of the speaker. 65.The import of the above provision is that the person who is mandatorily entitled to be informed about the outcome of the petition before the 1st Respondent is the Petitioner who moved the motion and not the person who appears before the committee for investigations. 66.The report of the Committee on Finance was tabled before the Assembly on 12th March 2025 and approved. The same was then forwarded to the County Secretary for its action. 67.Vide a letter dated 27th March 2025, the Applicant was redeployed to the Department of Health Services from his previous position of Director of Budget, Monitoring and Evaluation by the Deputy County Secretary. Under Section 72(2) of the County Governments Act, the power to deploy a county public officer from one department to another shall vest in the head of the county public service. It is on this premise that the Deputy County Secretary redeployed the Applicant as above. 68.The Applicant seeks orders of certiorari to quash the 1st Respondent’s Recommendations as contained in the Report dated 12th March 2025 and the letter dated 27th March 2025 from the Deputy County Secretary of the 2nd Respondent. The Applicant has not adduced any evidence that the said 1st Respondent’s Committee acted without authority or that the office of the County Secretary, the chair of the Public Service Board, should not have issued the directions to redeploy him. The court’s power in a judicial review is first and foremost supervisory in establishing whether the decision complained of was made within the confines of the law. 69.The Applicant appeared before the said committee and did not raise any objection as to the partiality, composition, or competence of the committee. Records from the County Hansard indicates that the Applicant had an opportunity to respond to the queries levelled against him, and it is on the basis of his responses that recommendations and a report were made. 70.The committee had the statutory mandate to investigate, call witnesses, and, make recommendations. The report was made and the recommendations were sent to the County Secretary as the head of county public service and then the Applicant was redeployed. There is no proof by the Applicant that the two entities, the 1st Respondent’s committee and or the office of the County Secretary, acted without authority, as they performed the functions of their respective offices. The court shall not interfere with the constitutional and statutory functions of the said offices and in the circumstances declines to issue the order of certiorari as sought. 71.On the prayer for an order of prohibition to restrain the Respondents or the Interested Party from implementing the 1st Respondent’s Committee report, an order of prohibition operates prospectively. It serves to prevent the making or implementation of a decision so long as it has not been executed. It should not concern the consequences of an act that has already been completed, as such consequences are deemed not to arise once the act is restrained. 72.In essence, prohibition issues to forestall a future or anticipated unlawful act. It neither quashes nor corrects a decision that has already been made and carried out or executed, nor can it be invoked to remedy an existing wrong. 73.The Applicant was redeployed on 27th March 2025 before these proceedings commenced. Further, by a letter dated 29th April 2025, the Chief Officer for Health Services confirmed that the Applicant had already reported to the Department of Health Services. It follows thus that there is nothing to be stopped or prohibited and issuance of such an order shall amount to nothing. 74.Further, the court should not prohibit any investigations by other statutory bodies, such as the EACC or any other, as that shall amount to interference with the statutory powers conferred upon such authorities and bodies. An order of prohibition is thus declined in the circumstances. 75.On the prayer for an order of mandamus, directing the Respondents and the Interested Party to jointly and severally and without any further delay, pay to the Applicant all pending arrears on account of unpaid salaries as accrued, the Applicant prays for Kshs1,531,332/= allegedly for services he offered as an employee from 2013 to 2020. The court finds and holds that the said issue cannot be determined in these proceedings and the same ought to be the subject of independent proceedings for the determination. In any event, no evidence was tendered on the same in these proceedings and the same is not proved. VI. Contempt 76.On the application for contempt, the Applicant’s case is that the citees therein failed to adhere to the court orders of 2nd April 2025 prohibiting the Respondents and or the Interested Party, their agents, or any other person, from implementing or further implementing or acting on any and or all the contents of the recommendations contained in the 1st Respondent’s report dated 12th March 2025 pending the hearing and determination of this matter and or other or further orders of the Court. The Applicant argued that despite service, the Respondents proceeded to deploy him and surcharged his salary. 77.On the other hand, the citees in the application for contempt contend that the Applicant did not personally serve the said orders upon them as a prerequisite for contempt proceedings. They further argue that prior to moving the Court, the Applicant had already been redeployed and his salary surcharged, and that he failed to make full and material disclosure of these facts. 78.The threshold in contempt proceedings beyond reasonable doubt is higher than balance of probabilities but lower than balance of probabilities. An applicant must demonstrate that the court order was personally served upon the contemnors that they had knowledge of the order and, that there was wilful disobedience thereof or conduct amounting to an affront to the authority of the Court – see Gatharia K Mutitika v Baharini Farm Limited (1985) KLR 229. 79.The evidence on record shows that the Applicant was redeployed on 27th March 2025. Further, by a letter dated 29th April 2025 the Chief Officer for Health Services confirmed that the Applicant had reported to the Department of Health Services as redeployed. This factual situation rendered compliance moot, as the order was issued and supposedly served after the fact. 80.The Respondents also produced a letter dated 25th March 2025 from the Office of the County Secretary addressed to the Director of Human Resource Management and Development, directing that the Applicant’s alleged salary overpayments be surcharged with immediate effect. The letter was received by the Human Resource Office on 1st April 2025, as evidenced by the official stamp. 81.Further, the Ethics and Anti-Corruption Commission (EACC) through a letter dated 5th February 2025 confirmed having commenced investigations into the alleged irregular payments made to the Applicant. Consequently, the prayers sought in the application had been overtaken by events as at the time of issuance of the impugned order on 2nd April 2025. 82.In any event, there is no evidence that the purported named contemnors were personally served with the impugned order or that they were aware of the same as to wilfully disobey the same 83.In the circumstances, the application for contempt shall fail. 84.For all the foregoing reasons, both the application for Judicial Review and the application for contempt lack merit and are hereby dismissed. V.Orders 50.The court finds and holds –a.That both the application for Judicial Review dated 29th March 2025 and the application for contempt dated 29th June 2025 have no merit and the same are disallowed.b.No orders as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.……………………DAVID NDERITUJUDGEELRC KAKAMEGA