https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1441

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **PETITION NO. 27 OF 2020** IN THE MATTER OF: THE ENFORCEMENT OF ARTICLES 10, 27, 28, 29, 41, 47 AND 236 OF THE CONSTITUTION OF KENYA **AND** IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 **AND** IN THE MATTER OF: SECTIONS 5, 45 AND 46 OF THE EMPLOYMENT ACT, 2007 **AND** IN THE MATTER OF: SECTIONS 12 AND 13 OF THE COUNTY GOVERNMENTS ACT, 2012 **AND** IN THE MATTER OF: SECTIONS 5, 17, 19, 22, 23 OF THE COUNTY ASSEMBLY SERVICES ACT, 2017 **AND** IN THE MATTER OF: VIOLATION AND THREATENED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER (*INTER ALIA*) ARTICLES 10, 27, 28, 29, 41, 47 AND 236 OF THE CONSTITUTION OF KENYA, 2010 **BETWEEN** DANIEL ODHIAMBO KAUDO (SUING AS THE CLERK, HOMA BAY COUNTY ASSEMBLY).......................................**PETITIONER** **VERSUS** SPEAKER, HOMA BAY COUNTY ASSEMBLY..........**1ST RESPONDENT** HOMA BAY COUNTY ASSEMBLY SERVICE BOARD.......................................**2ND RESPONDENT** **AND** HON. MICHAEL NYANGI.................................**1ST INTERESTED PARTY** HON. JUMA OWUOR.........................................**2ND INTERESTED PARTY** COMM. LILIAN OGONO…………….………..**3RD INTERESTED PARTY** COMM. JOSEPH OKOTO………...……………**4TH INTERESTED PARTY** FAITH ADHIAMBO APUKO………………….**5TH INTERESTED PARTY** **JUDGMENT** 1. Via a Further Amended Petition dated 23rd September 2025 the Petitioner seeks the following reliefs: * + 1. A declaration that the unilateral decision by the Respondents to suspend and/or remove the him as Clerk of the County Assembly Homa Bay amounts to witch hunt and violates his right to a fair trial as envisaged under Article 50 of the Constitution; 2. A declaration that the decision of the Respondents to suspend and/or remove the Petitioner as the Clerk of the County Assembly of Homabay without due process was in violation of the Petitioner’s rights under Article 47 of the Constitution; 3. A declaration that the decision of the Respondents to suspend and/or remove the Petitioner as the Clerk of the County Assembly of Homabay without due process was in violation of the Petitioner’s rights to fair labour practices as protected under Article 41 of the Constitution; 4. A declaration that the decision of the Respondents to suspend and/or remove the Petitioner as the Clerk of the County Assembly of Homabay without due process was in violation of Article 236(ii) of the Constitution which protects the Petitioner from dismissal, removal from office, demotion in rank or subjection to disciplinary action without the due process of the law; and therefore, null and void. 5. A declaration that the action of the Respondents, or any other person acting under them, in proceeding to hold a meeting and pass resolutions to suspend the Petitioner as the Clerk of County Assembly of Homabay in the absence of a quorum was/is null and void *ab initio*. 6. A declaration that the action of the 1st Respondents in purporting to act on the decision of the 2nd Respondent made on 24th July 2020 to suspend the Petitioner is illegal, biased, and void. 7. An order of Judicial Review in the nature of *certiorari* to remove in to the Employment *&* Labour Relations Court and quash the decision of the 2nd Respondent to suspend the Petitioner on 24th July 2020. 8. This Honourable Court be pleased and do hereby grant judicial review order of *certiorari* to remove into this Honourable Court and quash the decision of the 2nd Respondent purporting to dismiss the Petitioner through a letter dated 30th December 2020. 9. This Honourable court be pleased to award the Petitioner Kshs. 20,000,000/- as damages for violation of his Constitutional Rights and Protection. 10. This Honourable court be pleased to award the Petitioner Kshs. 85,200,000/- as compensation for unlawful termination of service and loss of career calculated as monthly salary (Kshs. 284,000/- x 12 months x 25 years). 11. Six months salary withheld as from July 2020 to December 2020 calculated at the rate of monthly salary for June 2020. 12. The costs of and incidental to this Petition. 13. Interest on items 9, 10, 11 and 12 above at court rates from the date of filing this Petition to the date of full and final settlement. 14. Any other, further, incidental or alternative reliefs as the Honourable Court may deem just and expedient. 15. Or in the alternative, this Honourable court be pleased and do hereby grant judicial review order of *mandamus* to remove into this Honourable Court and compel the 2nd Respondent to re-engage the Petitioner to the position of Director, Information *&* Research Services or other reasonably suitable work in the County Assembly Service in accordance with section 49(3)(b) of the Employment Act of 2007. 2. The Petitioner’s case is that, vide a communication dated 24th July 2020, the 1st Respondent conveyed a decision made by the 2nd Respondent suspending him from the office of Clerk of the Homa Bay County Assembly to pave way for investigations into various complaints and allegations raised against him. The Petitioner contends that the suspension constituted an adverse administrative action undertaken without disclosure of the allegations against him, without affording him an opportunity to be heard, and before any inquiry had been conducted to establish the veracity of the accusations contrary to Articles 47 and 50 of the Constitution as well as the applicable statutory provisions governing disciplinary proceedings. He therefore avers that the Respondents acted in breach of the rules of natural justice by condemning him unheard. The Petitioner further asserts that the suspension and removal of a Clerk of a County Assembly are governed by the provisions of the County Assembly Services Act, 2017, which sets out both the substantive grounds and procedural safeguards to be complied with before such action may be taken. According to the Petitioner, the Respondents failed to adhere to the prescribed statutory procedure, thereby rendering the impugned actions unlawful, null and void. He further maintains that the meeting held on 24th July 2020, at which the decision to suspend him was purportedly made, was itself irregular and unlawful since he, in his capacity as Secretary to the 2nd Respondent, neither convened the meeting nor participated in it, while other members of the Board denied having attended the said meeting. Consequently, the Petitioner contends that the impugned decision was not a lawful decision of the Board. 3. The Petitioner further states that this Court initially dismissed the Petition in a judgment delivered on 17th December 2020 on the ground that his appointment as Clerk had not been properly gazetted. He contends, however, that gazettement was not a statutory requirement under section 13(1) of the County Governments Act and section 18 of the County Assembly Services Act. According to the Petitioner, the Court therefore failed to determine the substantive question regarding the legality of his suspension and subsequent removal from office. Dissatisfied with that decision, the Petitioner lodged an appeal before the Court of Appeal at Kisumu in **Civil Appeal No. E036 of 2021**. In a judgment delivered on 11th February 2022, the Court of Appeal allowed the appeal and remitted the matter back to this Court for hearing before a different Judge. 4. The Petitioner further avers that prior to the impugned judgment delivered on 17th December 2020; this Court had issued conservatory orders on 2nd October 2020 restraining the Respondents from removing him from office. He contends that notwithstanding the existence of those orders, and before the legality of the suspension process had been determined, the Respondents purported to dismiss him through a letter dated 30th December 2020 in contravention of section 23(1) of the County Assembly Services Act and without adherence to due process. 5. The Petitioner also maintains that the procedure adopted by the Respondents in effecting his removal from office was irregular. In this regard, he contends that the 2nd Respondent constituted investigative and select committees unknown to law, which eventually recommended his removal. He further avers that the recommendations leading to his dismissal were improperly founded on the judgment of this Court which had held that he was not validly in office, a decision that was subsequently overturned on appeal. Consequently, the Petitioner maintains that his removal from office was unconstitutional, unlawful and procedurally unfair. 6. The Petitioner further asserts that while the appeal was pending, the 2nd Respondent disregarded court orders issued in **Kisumu ELRC Judicial Review No. E016 of 2021** and unlawfully proceeded with the recruitment of a new Clerk of the Assembly with the intention of defeating the pending appeal. He contends that the recruitment process was marred by procedural improprieties, conflict of interest and violations of the County Assembly Standing Orders. In particular, the Petitioner avers that the report relating to the recruitment of a new Clerk was prepared by officers in the Clerk’s office instead of the 2nd Respondent, and that the Acting Clerk, Ms. Faith Adhiambo Apuko, who participated in the process, was herself an interested candidate and was subsequently appointed substantive Clerk. He further contends that the report was tabled and approved contrary to Standing Order No. 44, which requires prior notice before tabling of reports, thereby rendering the approval process contrary to section 18(2) of the County Assembly Services Act. The Petitioner additionally asserts that the report recommending the appointment of the new Clerk was neither signed by the 1st Respondent nor by any person authorized by her and was therefore a forgery. Consequently, he maintains that the appointment of Ms. Faith Adhiambo Apuko as Clerk was unlawful, null and void, and that the remedy of reinstatement remains available to him. Lastly, the Petitioner avers that prior to his appointment as Clerk he had served in the civil service, and that his unlawful dismissal from the office of Clerk, without redeployment to any other public service position, effectively brought his public service career to an end without due process. Flowing from the foregoing, the Petitioner avers that he suffered immense loss, harm and damage arising from job insecurity occasioned by persistent threats, harassment and what he terms as a malicious suspension from office. He further contends that the impugned actions caused him mental and psychological anguish and resulted in the loss of employment benefits and career progression. 7. As regards the legal foundation the Petitioner states it to include: - * + 1. Article 27 of the Constitution of Kenya, 2010 (hereinafter, “the Constitution”) which protects the Petitioner from discrimination or harassment on grounds of, *inter alia*, ethnicity and political affiliation; 2. Articles 28 and 29 of the Constitution, which guarantee the Petitioner’s security of the person, protection of the law and freedom from cruel, inhuman and degrading treatment; 3. Article 41 and 47 of the Constitution, on fair labour practices and the right to fair administrative action. 4. Article 236 of the Constitution which protects the Petitioner from victimization for performing the functions of his office and dismissal or demotion in rank without due process. 5. Sections 5, 45 and 46 of the Employment Act which protects employees against discrimination, harassment and unfair termination or removal from office. 6. Section 12(5) of the County Governments Act, which protects the tenure of office of the Members of the 2nd Respondent. 7. Sections 5, 11, 17, 19 and 22 of the County Assemblies Service Act, which provides for neutrality, statutory functions and security of office and suspension of the Clerk of a County Assembly. 8. On 27th April 2026 when the matter was mentioned for directions on disposal of the Further Amended Petition, Counsel for the 1st, 2nd Respondents and for the Interested Parties were of the opinion that the Petition did not raise anything new. The Court directed that parties file written submissions to dispose the matter. Petitioner’s Submissions 1. The Petitioner identified four issues for determination, namely whether any valid disciplinary or employment decision capable of review under the Employment Act arose; 1. whether the suspension and subsequent termination were unlawful, null and void; 2. whether his constitutional rights were violated; and 3. whether he was entitled to the reliefs sought. 2. On whether any valid disciplinary or employment decision capable of review under the Employment Act arose, the Petitioner submits that no lawful employment decision was ever made by the County Assembly Service Board, which was his lawful employer. The Petitioner submits that there was no quorate meeting of the Board, no resolution suspending or removing him from office, no framing or service of charges, no written notice, no hearing, and no participation by the lawful employer in the impugned process. He submits that four out of the five Board members swore affidavits denying participation in the meeting of 24th July 2020 and that no Board minutes or resolutions were produced to demonstrate that the Board resolved to suspend or remove him. The Petitioner further submits that under section 74 of the Employment Act, the relevant disciplinary records were within the custody of the employer and the Respondents’ failure to produce them entitles the Court to draw an adverse inference that no such resolutions existed. Reliance was placed on **Kenya Power *&* Lighting Company Limited *v* Aggrey Lukorito Wasike [2017] eKLR**and **Kenya Akiba Micro Financing Limited *v* Ezekiel Chebii *&* 14 others [2012] eKLR**, where the Court of Appeal held that failure to produce documents within a party’s possession entitled the Court to infer that the evidence would have been adverse to that party. The Petitioner therefore submits that the purported suspension and termination were nullities incapable of legal validation. 3. On whether the suspension and termination were unlawful, null and void, the Petitioner submits that sections 22 and 23 of the County Assembly Services Act provide the exclusive grounds and procedure for suspension or removal of a Clerk of a County Assembly. He submits that the quorum of the Board under the Second Schedule to the Act is three members, yet four members denied attending the alleged meeting of 24th July 2020. Consequently, the Petitioner submits that the purported suspension could not be attributed to the Board and was therefore void for want of jurisdiction. The Petitioner further submits that none of the mandatory statutory steps under section 23 of the County Assembly Services Act were complied with in the purported termination process. He reiterates that there was no Board resolution initiating removal proceedings; no charges were framed or served upon him; no written response was invited; and no hearing was accorded to him either personally or through counsel. Instead, the Petitioner submits that the County Assembly established committees unknown to law which investigated and recommended his removal without jurisdiction. Reliance was placed on **Macfoy *v* United Africa Company Ltd [1962] AC 152 (PC)**,for the proposition that acts undertaken without jurisdiction are void *ab initio* and incapable of conferring legal effect. The Petitioner consequently submits that there was no lawful suspension or termination capable of interrogation under sections 41, 43 or 45 of the Employment Act and that to analyse the matter under the framework of procedural or substantive fairness would amount to legitimising unconstitutional nullities contrary to Articles 2(4) and 236 of the Constitution. 4. On the alleged violation of constitutional rights, the Petitioner submits that the impugned actions contravened Articles 41, 47, 50 and 236 of the Constitution. He submits that Article 47 guarantees lawful, reasonable and procedurally fair administrative action, yet the suspension and termination were undertaken by persons without jurisdiction, without notice of charges, without affording him an opportunity to respond, and through procedures unknown to law. Reliance was placed on **Suchan Investment Limited *v* Ministry of National Heritage *&* Culture [2016] eKLR**, where the Court of Appeal held that Article 47 constitutionalised the rules of natural justice and procedural fairness. The Petitioner further submits that failure to comply with due process violated his right to fair labour practices under Article 41 of the Constitution. Reference was made **Bramuel Dibondo Musundi *v* Kenya Revenue Authority [2018] eKLR**, where the Court of Appeal held that failure by an employer to comply with its own disciplinary procedures amounted to unfair labour practice and unlawful conduct. 5. On Article 50(1), the Petitioner submits that he was condemned unheard and denied a fair hearing. Reliance was placed on **Shitemi *v* Maisibo *&* another [2023] KEHC 26654 (KLR)**, where the Court of Appeal reiterated that a fair hearing requires notice and an opportunity to present one’s case before adverse action can be taken. The Petitioner also submits that Article 236(b) of the Constitution protects public officers from disciplinary action or removal from office without due process. He referenced **County Assembly of Kisumu *&* 2 others *v* Kisumu County Assembly Service Board *&* 6 others [2015] KECA 397 (KLR)**, where the Court of Appeal defined due process as encompassing the right to a fair hearing. The Petitioner therefore submits that the failure to comply with section 23 of the County Assembly Services Act rendered the suspension and termination unconstitutional and invalid by operation of Article 2(4) of the Constitution. 6. On remedies, the Petitioner submits that he is not pursuing remedies founded on unfair termination under sections 45, 47(5) or 49(1) of the Employment Act because those provisions presuppose a lawful disciplinary process. Instead, he submits that the appropriate remedies arise from constitutional vindication and judicial review since no lawful employment decision was ever made. The Petitioner asserts that he principally seeks re-engagement to a suitable position within the County Assembly Service, including the office of Director of Information and Research Services or any comparable office. He submits that once the Court finds the suspension and termination void ab initio, the legal consequence is that he never lawfully exited public service. He citesthe case of **Judicial Service Commission *v* Njora [2021] KECA 366 (KLR)** and the case of **Stephen Pareno *v* Judicial Service Commission of Kenya [2014] KECA 307 (KLR)**, where the Court of Appeal affirmed restoration following unlawful removal from public office. The Petitioner further submits that while reinstatement under section 12(3)(vii) of the Employment and Labour Relations Court Act is time barred, re-engagement under section 49(3) of the Employment Act is not. He relies on **Banking Insurance Finance Union (Kenya) *v* Cooperative Bank of Kenya Ltd [2015] KEELRC 856 (KLR)**. He submits that the Respondents failed to demonstrate impracticability of re-engagement, abolition of the office previously held by the Petitioner, or his unsuitability for public service. The Petitioner additionally submits that alleged loss of trust cannot arise in the absence of proven misconduct or lawful disciplinary proceedings and that denying re-engagement would reward illegality and entrench impunity in public administration. He further submits that any delay in resolving the matter arose from prolonged litigation and cannot sanitise unconstitutional conduct. 7. On constitutional damages, the Petitioner submits that he is entitled to Kshs. 20,000,000/- for violation of his constitutional rights. Reliance is placed on **Judicial Service Commission *v* Mbalu Mutava *&* another [2015] eKLR**, where the Court of Appeal held that constitutional violations warrant remedies independent of statutory employment claims. The Petitioner also relies on **Attorney General *v* Matu [2025] KECA 403 (KLR)**, where the Court of Appeal enhanced constitutional damages to Kshs. 20,000,000/- and emphasised that such awards should vindicate constitutional rights and deter abuse of public power. 8. The Petitioner also filed supplementary submissions dated 19th May 2026, the purpose of which he stated was to orient the court to this matter and to provide the appellate history. On the appellate history of the matter, the Petitioner submits that the dispute has twice been before the Court of Appeal and that the appellate decisions now define the binding scope of this Court’s mandate. The Petitioner submits that in the first appeal**, Civil Appeal No. E036 of 2021**, the Court of Appeal overturned the judgment of Radido J. which had dismissed the Petition on the basis that the Petitioner’s appointment as Clerk was invalid for having been gazetted by an acting Speaker. Reliance was placed on the judgment of Kiage JA, who held that there existed no valid reason for invalidating the Petitioner’s appointment and that the trial court ought to have determined the substantive issue of whether the Petitioner’s suspension and removal were lawful. The Petitioner submits that the matter was consequently remitted to the Employment and Labour Relations Court for rehearing before a different Judge specifically to determine the lawfulness of the suspension and removal. 9. The Petitioner further submits that in the second appeal, **Civil Appeal No. E295 of 2022**, the Court of Appeal again intervened after Baari J, upon rehearing the matter, revisited the question of the legality of the Petitioner’s appointment instead of determining the remitted issue concerning suspension and removal. The Petitioner submits that the Court of Appeal, invoking the doctrine of *stare decisis*, found that the learned Judge committed a reversible error by reopening the issue of appointment contrary to the earlier appellate determination. Reliance was placed on paragraph 40 of the judgment where the Court of Appeal held that the only issue remitted to the ELRC was whether the suspension and removal of the Petitioner from office as Clerk of the County Assembly were lawful. The Petitioner therefore submits that the Court of Appeal conclusively settled two matters which are no longer available for re-litigation before this Court. First, the validity of the Petitioner’s appointment as Clerk was conclusively upheld after the Court of Appeal twice intervened to prevent the dismissal of the Petition on that basis. 10. Secondly, the Court of Appeal expressly determined that the challenge to the appointment of the 7th Respondent, Faith Apuko, failed and would not be retried upon remand. Accordingly, the Petitioner submits that the sole issue before this Court is whether the suspension of the Petitioner on 24th July 2020 and his subsequent removal by letter dated 30th December 2020 were lawful and, if not, what reliefs he is entitled to. The Petitioner further submits that any attempt by this Court to revisit the legality of his appointment or the validity of the 7th Respondent’s appointment would amount to the same reversible error identified by the Court of Appeal. 11. On a procedural concern arising from the 2nd Respondent’s submissions, the Petitioner points out that the 2nd Respondent appears to have filed two separate sets of submissions through different firms of advocates, namely **Onsongo *&* Company Advocates** and **N.E. Mogusu *&* Associates**. The Petitioner maintains that it is unclear from the record whether a Notice of Change of Advocates was filed and served, and urges the Court to satisfy itself as to which firm is properly on record and which submissions represent the authorised position of the 2nd Respondent. The Petitioner further submits that the submissions filed by **N.E. Mogusu *&* Associates**principally revisit the issue of the validity of his appointment and allege that he assumed office through deceit, yet that question was conclusively foreclosed by the Court of Appeal’s binding directions. In any case he asserts that both submissions are not backed by sworn evidence, Board minutes, resolutions or documentary proof establishing the lawfulness of the suspension or removal, which remains the only issue for determination. 2nd Respondent’s Submissions 1. The 2nd Respondent identifies the following issues for determination: whether the Petition is competent; what the mandate, authority and powers of the 2nd Respondent in relation to discipline of its employees is; whether the Respondents breached any constitutional or statutory provisions by suspending and subsequently dismissing the Petitioner; whether the Court can reinstate the Petitioner and thereby impose an employee on an unwilling employer; whether the Petitioner is entitled to the orders sought; and who should bear costs. 2. On the competence of the Petition, the 2nd Respondent submits that the Petition is premature and therefore incompetent. It is submitted that the impugned decision of 24th July 2020 merely suspended the Petitioner to pave way for investigations into several allegations and complaints lodged against him. According to the 2nd Respondent, the investigations were necessary to determine whether the allegations had substance before any decision could be made on whether to commence removal proceedings or lift the suspension. The 2nd Respondent further submits that section 23 of the County Assembly Services Act only becomes operative once the Board has resolved to remove the Clerk from office. Reference is placed on section 23 of the Act, which prescribes the procedure to be followed where the Board considers it necessary to remove the Clerk, including framing charges, supplying the charges and supporting allegations to the Clerk, inviting a written response, and affording the Clerk an opportunity to appear before the Board personally or with counsel. The 2nd Respondent submits that at the time the Petition was filed, no decision had been made to remove the Petitioner from office and the Board had merely placed him on suspension pending investigations. It was further submitted that upon conclusion of investigations, the Petitioner was found culpable and was subsequently removed from office through the letter dated 30th December 2020, thereby giving rise to a fresh cause of action which the Petitioner could have challenged separately. 3. On the mandate, authority and powers of the 2nd Respondent, it is submitted that section 22 of the County Assembly Services Act vests the Board with authority to suspend or remove the Clerk on grounds including inability to perform the functions of office, gross misconduct, incompetence, bankruptcy, violation of the Constitution, or violation of the Act. The 2nd Respondent submits that in order to determine whether a Clerk ought to be removed under those provisions, it must investigate allegations and complaints raised against the officer concerned. The 2nd Respondent further submits that the suspension was intended to create an enabling environment for investigations and did not amount to disciplinary action within the meaning of Article 236 of the Constitution. 4. The 2nd Respondent cited section 4(3) of the Fair Administrative Action Act, which sets out the procedural safeguards applicable where administrative action is likely to adversely affect a person’s rights or fundamental freedoms. It submits that the procedural protections under Article 236 of the Constitution and section 4(3) of the Fair Administrative Action Act would only arise if the investigations disclosed sufficient basis to commence removal proceedings. Consequently, it was argued that the 2nd Respondent could not be said to have violated Article 236 of the Constitution merely by suspending the Petitioner pending investigations. The 2nd Respondent further submits that the Petition sought to forestall lawful investigations intended to establish the veracity of the allegations against the Petitioner and thereby improperly interfere with the statutory mandate of the Board. It relies on the decision in 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 cogent reasons are demonstrated. The 2nd Respondent submits, by parity of reasoning, that the Court should not interfere with the investigative mandate granted to the Board under the County Assembly Services Act and that the question whether investigations would yield material justifying removal was premature at the stage the Petition was filed. 5. It is the Respondent’s further submission that courts should avoid micromanaging employer disciplinary processes and managerial prerogatives. It relies on **Judicial Service Commission *v* Gladys Boss Shollei (Civil Appeal 50 of 2014) [2014] KECA 334 (KLR)**, where the Court of Appeal observed that courts should not lightly interfere with employer disciplinary decisions and must appreciate the operational realities facing employers. It also relies on **Rebecca Ann Maina *v* Jomo Kenyatta University of Agriculture and Technology [2014] eKLR** which cited **Alfred Nyungu Kimungui *v* Bomas of Kenya [2013] eKLR**, wherein the Employment and Labour Relations Court cautioned against courts taking over managerial prerogatives in workplace administration. 6. On reinstatement, the 2nd Respondent submits that the Court cannot impose an employee on an unwilling employer. It refers to **Kenya Airways Limited *v* Aviation *&* Allied Workers Union Kenya [2014] eKLR**, where the Court held that where trust between employer and employee has irretrievably broken down, reinstatement would be inappropriate. The 2nd Respondent further relies on **Kenya Power *&* Lighting Company Limited *v* Aggrey Lukorito Wasike [2017] eKLR**, where the Court of Appeal held that reinstatement constitutes an exceptional remedy and courts must identify exceptional circumstances before granting such relief. It relies on the decision in 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 in wrongful dismissal cases and should only issue in exceptional circumstances after considering the state of the employment relationship and availability of alternative remedies. 7. In conclusion, the 2nd Respondent submits that insofar as the Petition challenged the suspension of the Petitioner, it was premature and incompetent because no removal proceedings had commenced under section 23 of the County Assembly Services Act at the time of filing. It submits that the Petition sought to improperly stifle the Board from exercising its lawful mandate and that the impugned process was legitimate and procedural. The 2nd Respondent further submits that if the Court ultimately finds that the dismissal was wrongful or unfair, the appropriate remedy would be compensation rather than reinstatement. It asserts that compensation equivalent to six months’ salary would suffice in the circumstances. Consequently, the 2nd Respondent urges the Court to dismiss the Petition with costs. Interested Parties’ Submissions 1. The 1st to 4th Interested Parties identify the issues for determination as: 1. whether the County Assembly had power under section 12(3) of the County Governments Act to remove or replace the 1st and 2nd Interested Parties as political party nominees to the Board; 2. whether any such purported replacement affected the lawful constitution of the Board; 3. whether the meeting held on 24th July 2020 was properly convened and constituted; whether the dismissal process complied with section 23 of the County Assembly Services Act; and 4. what reliefs, if any, are available. 2. The Interested Parties submit that section 12(3) of the County Governments Act establishes the County Assembly Service Board and distinguishes between members nominated by political parties and public members appointed by the County Assembly. They submit that the Clerk serves as the Secretary to the Board under the same provision. They further submit that section 12(5) of the County Governments Act contemplates revocation of office in respect of appointed members, while section 10 of County Assembly Services Act specifically governs removal of persons appointed under section 12(3)(d) of the County Governments Act. 3. It is the Interested Parties’ submission that the statutory framework deliberately distinguishes between “nominated” members and “appointed” members of the Board. They submit that political party nominees derive their mandate from party representation, whereas public members derive office through appointment by the County Assembly. According to the Interested Parties, Parliament intentionally confined the removal mechanism under section 10 of County Assembly Services Act to appointed public members and did not extend the same to political party nominees. The Interested Parties therefore submit that the County Assembly lacked authority to revoke or replace political party nominees absent action by the nominating political parties. They contend that any contrary interpretation would collapse the distinction between nomination and appointment expressly created by statute. They further submit that any purported removal or replacement of political party nominees without lawful authority raises serious questions as to the legality of the Board’s composition. The Interested Parties submit that the lawful constitution of the Board is a statutory requirement and not a matter of convenience. They argue that decisions made by a Board not constituted in accordance with statute are invalid for want of jurisdiction. In support of this position, they rely on the decision in **Anisminic Ltd *v* Foreign Compensation Commission [1969] 2 AC 147** for the proposition that acts undertaken without jurisdiction are nullities. They also rely on **County Assembly of Kisumu *&* 2 others *v* Kisumu County Assembly Service Board *&* 6 others [2015] eKLR** others where unlawful resolutions affecting a County Assembly Service Board were declared null and void.It is the Interested Parties’ submission that if the Court finds that political party nominees were unlawfully removed or replaced, then decisions undertaken by the purportedly constituted Board may equally be invalid for want of lawful constitution or quorum. 4. Regarding the alleged meeting of 24th July 2020, the Interested Parties submit that the Petition challenges both the existence and validity of the meeting. They underscore the statutory role of the Clerk as Secretary to the Board and submit that the Court ought to examine evidence relating to the convening of the meeting, participation of members, minutes, records, and the presence of the legally required members. They reiterate their position that they did not participate in the impugned meeting and urge the Court to interrogate the evidentiary basis of the alleged resolution. The Interested Parties further submit that if the Court finds that the meeting was not properly convened, was not quorate, or was not a meeting of a legally constituted Board, then any resolution attributed to it cannot stand as a lawful Board decision. 5. On the dismissal process, the Interested Parties submit that the legality of the Petitioner’s dismissal must be measured against the mandatory procedure prescribed under section 23 of County Assembly Services Act. They submit that the statute requires the Board to frame charges, furnish the charges and supporting allegations to the Clerk, invite a written response, and accord the Clerk an opportunity to appear before the Board either personally or with an advocate. They further submit that the statute contemplates referral to the Speaker and subsequently to a select committee only after the Board has undertaken the initial disciplinary process. The Interested Parties contend that these procedural safeguards are mandatory and give effect to constitutional guarantees of due process and fair administrative action. They therefore submit that the Court must examine whether the statutory steps under section 23 of the County Assembly Services Act were complied with and whether the Board was lawfully constituted at the time of initiating or implementing the disciplinary process. 6. The Interested Parties further submit that the statutory framework under the County Governments Act and County Assembly Services Act must be interpreted consistently with constitutional principles of accountability, transparency, and due process. They rely on **Council of Civil Service Unions *v* Minister for the Civil Service [1984] UKHL 9**, for the principles of illegality, irrationality, and procedural impropriety as recognised grounds for judicial review. It is the Interested Parties’ submission that where a decision is made by a body not lawfully constituted, or in violation of mandatory statutory procedure, the Court has jurisdiction to declare such a decision invalid and to grant appropriate relief. It is therefore their submission that they support this courts declaration of the illegality of the suspension dated 24th July 2020 and the dismissal dated 30th December 2020. They further submit that reinstatement or alternative remedies remain within the Court’s discretion depending on its findings. 7. In response to anticipated counterarguments, the Interested Parties submit that the Court should reject any implied power by the County Assembly to remove political party nominees, arguing that sections 12(5) of the County Governments Act and section 10 of County Assembly Services Act confine removal powers to appointed public members. They further submit that foundational defects relating to unlawful removal or constitution of the Board cannot be cured by subsequent actions. They maintain that the validity of the impugned meeting remains a factual question requiring strict evidentiary scrutiny consistent with statutory requirements on record keeping and Board membership. 8. In conclusion, the Interested Parties submit that the Petition raises serious issues concerning statutory compliance and lawful governance of the County Assembly Service Board. They urge the Court to find that the County Governments Act and County Assembly Services Act establish distinct treatment between political party nominees and appointed members, and to evaluate the evidence concerning the purported removal or replacement of nominees, the validity of the meeting of 24th July 2020, and compliance with section 23 of County Assembly Services Act. Consequently, they support the Petition and pray that the Court grants appropriate reliefs consistent with its findings on the law and evidence. Disposition 1. The issue that lends itself for determination following the determination of the Court of Appeal upon the decision of my sister Baari J. is plainly this: 1. whether the suspension and removal of the Petitioner from office as Clerk of the County Assembly were lawful. 2. The issue of representation of the Respondents is not of any significance and nothing turns on the issue of submissions being filed by 2 law firms. The Petitioner himself asserts the matter has been litigated numerous times before this Court and the Court of Appeal. Perhaps in the confusion generated by the myriad suits two firms forwarded submissions to this Court on behalf of the Respondents. As they did not conflict in their import, the Court pays no heed to the *ipso facto* representation of the Respondents by 2 law firms. The 1st to 4th Interested Parties support the Petitioner and so they seem to be on the same side. 3. The suspension of a Clerk of a county assembly is governed by section 22 of the County Assemblies Act. The section provides as follows: *22. Suspension or removal of the Clerk* *The Board may suspend or remove from office, the Clerk for —* *(a) inability to perform the functions of the office, whether arising from infirmity of body or mind;* *(b) gross misconduct or misbehaviour;* *(c) incompetence;* *(d) bankruptcy;* *(e) violation of the provisions of the Constitution, including Chapter Six of the Constitution; or* *(f) violation of the provisions of this Act.* 1. Once section 22 is triggered, section 23 applies. In the removal or suspension process, the law provides as follows: *23. Procedure for removal of the Clerk* *(1) Where the Board considers it necessary to remove the Clerk under section 20, the Board shall —* *(a) frame a charge or charges against the Clerk;* *(b) 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;* *(c) invite the Clerk to respond to the allegations in writing setting out the grounds on which the Clerk relies to exculpate himself or herself; and* *(d) invite the Clerk to appear before the Board, either personally or with an advocate as he or she may opt, on a day to be specified, to exculpate himself or herself.* *(2) If the Clerk does not furnish a reply to the charge or charges within the period specified, or if in the opinion of the Board the Clerk fails to exculpate himself or herself, the Board shall submit a notice of a motion to the Speaker seeking that the county assembly revokes the appointment of the Clerk.* *(3) A motion under subsection (1) shall specify —* *(a) the grounds set out in section 21 in which the Clerk is in breach; and* *(b) the facts constituting that ground.* *(4) Upon notice of the motion under subsection (2), the Speaker shall refer the matter to a select committee of the assembly consisting of eleven members and established in accordance with the Standing Orders of the assembly to investigate the matter within ten days of receipt of the motion.* *(5) The select committee shall, within ten days, report to the assembly whether it finds the allegations against the Clerk to be substantiated.* *(6) The Clerk shall have the right to appear and be represented before the* *select committee during its investigations.* *(7) The assembly shall consider the report of the select committee and resolve whether to approve the motion.* *(8) If the assembly approves a motion filed under this section, the Clerk against whom the motion was filed shall be deemed to have been removed from office from the date the motion was approved.* 1. The process in respect of the Petitioner herein was one fraught with missteps. The Petitioner is wrong to imagine that he would have been the one to call for the meeting to terminate his services. He definitely would not have any part in the actions of the Board seeking to implement or initiate the action of the Board where the Board considers it necessary to remove the Clerk under section 20. As provided for in law, the Board is then required toframe 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 himself; 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 himself. Having failed to do this, the County Assembly Service Board fell in error. There were no charges framed that the Petitioner was required to answer to despite being accused of various misdeeds. The Petitioner did not get an opportunity to defend himself against the accusations the Board raised against him. This was a manifest failure on the part of the Board. The Petitioner should have been put to his defence if at all there was reason for his suspension or removal from office. A select committee should have been established in line with the law to investigate and make recommendations on the suspension or removal from office. This was not done. As such, the Court returns that the suspension and removal of the Petitioner from office as Clerk of the County Assembly was unlawful. 1. The foregoing points inescapably to the Petitioner’s rights having been abridged. He suffered ignominy in removal. So, what remedies would lie? Had the Petition been determined in his favour within 3 years of his removal, there would have been some possibility of reinstatement to office in certain circumstances. This relief of reinstatement is not available at present. Having lost the position in July 2020, the same is presently occupied and not available for the Petitioner to obtain reinstatement to. Instead, some monetary compensation would suffice. 2. The Petitioner sought the sum of Kshs. 85,200,000/- as compensation for unlawful termination of service and loss of career calculated as monthly salary multiplied by the 25 years he anticipated he would be employed for. He is not entitled to payment for loss of career, whatever that means. He also sought the payment of six months salary he alleges was withheld as from July 2020 to December 2020. The Petitioner would not be entitled to any pay as salary while he was no longer rendering any service to the County of Homabay. He only obtains the following relief which suffices as he cannot occupy a position that is now occupied by another. In other words, despite declarations made elsewhere, he is NOT the Clerk of the County Assembly of Homabay. All the other reliefs he seeks are equally not for grant as the quashing of the letter will be of little effect since he cannot be reinstated to his position having been out of office for over 3 years. The Court will also not issue any orders of *mandamus.* This was not part of the issues remitted to this Court for determination after the matters went to the Court of Appeal a second time. The position of the Court of Appeal was granular and must be respected as it is binding on this Court. To step out of the decision would be running afoul of the *stare decisis* doctrine. 3. The final outcome in this Petition is that the Court grants the following reliefs only:- 1. A declaration do and is hereby issued that the suspension of the former Clerk Homabay County (the Petitioner herein) was unlawful. 2. The Petitioner will be entitled to payment of Kshs. 10,000,000/- as damages for the unfair removal from office. 3. The Petitioner is entitled to the costs of this Petition. 4. There will be interest at court rates on the sum in (b) above from the date of judgment till payment in full. It is so ordered. **Dated and delivered at Kisumu this 26th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**