[2022] KEELRC 12849 (KLR)
The court found that the parties had freely entered into a consent settling the petition, with terms that the respondents would follow due process in the recruitment exercise and bear half the costs. There was no evidence before the court to suggest that the consent was not properly executed or that any party was...
Source-derived case information.
- Citation
- [2022] KEELRC 12849 (KLR)
- Parties
- Applicant: Vincent Mariita Omao; Respondent: Duke Onyari (Acting Clerk, County Assembly of Nyamira); Respondent: Speaker, County Assembly of Nyamira; Respondent: County Assembly Service Board; Respondent: County Assembly of Nyamira; Respondent: Director, Public Prosecutions; Respondent: Director of Criminal Investigations
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Settlement and Adoption of Consent
- Outcome
- Petition marked as settled by consent; consent adopted as order of the court.
- Judges
- S Radido
- Legal Topics
- Recruitment Process, Leadership and Integrity, Due Process, County Government Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Mariita Omao
Applicant
Duke Onyari (Acting Clerk, County Assembly of Nyamira)
Respondent
Speaker, County Assembly of Nyamira
Respondent
County Assembly Service Board
Respondent
County Assembly of Nyamira
Respondent
Director, Public Prosecutions
Respondent
Director of Criminal Investigations
Respondent
Procedural Posture
Constitutional Petition / Ruling on Settlement and Adoption of Consent
Legal Issues
- 1 Whether the recruitment process by the County Assembly of Nyamira violated constitutional and statutory provisions.
- 2 Whether the parties' consent should be adopted as an order of the court.
- 3 Whether costs should be apportioned as per the consent.
Ratio Decidendi
The court found that the parties had freely entered into a consent settling the petition, with terms that the respondents would follow due process in the recruitment exercise and bear half the costs. There was no evidence before the court to suggest that the consent was not properly executed or that any party was coerced or lacked authority. Accordingly, the court adopted the consent as an order of the court, marking the petition as settled in accordance with the agreed terms. The court declined to entertain further applications inconsistent with the consent, emphasizing the finality and binding nature of consent orders unless set aside for good cause.
Court Disposition
Petition marked as settled by consent; consent adopted as order of the court.
Orders
- The respondents to follow due process in the recruitment exercise.
- The petition is marked as settled.
Full Case Text
Judgment text and source record
39 paragraphs
Omao v Duke Onyari (Acting Clerk, County Assembly of Nyamira) & 5 others (Petition 4 of 2022) [2022] KEELRC 12849 (KLR) (12 October 2022) (Ruling)
Neutral citation: [2022] KEELRC 12849 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 4 of 2022
S Radido, J
October 12, 2022
IN THE MATTER OF ARTICLES 1(3)(c), 2(1), 3(1), 10, 22, 23(1) & (3), 73, 74, 75, 79, 80, 159(1), 160(5), 161(2)(b), 163(b), 165(3)(a),(b) & (3)(d)(ii), 166(2)(c) & (3), 258, 259(1) & (3) and 260 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF PRINCIPLES OF LEADERSHIP AND INTEGRITY UNDER CHAPTER 6 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF RESPONSIBILITIES OF LEADERSHIP UNDER ARTICLE 73 OF THE CONSTITUTION OF KENYAANDIN THE MATTER OF THE PRINCIPLES GOVERNING THE CONDUCT OF STATE OFFICERS UNDER ARTICLE 75 OF THE CONSTITUTION AND IN THE MATTER OF SECTIONS 3, 4, 5, 6, 7, 8 AND 11 OF THE LEADERSHIP AND INTEGRITY ACT NO. 19 OF 2012 AND IN THE MATTER OF THE GENERAL LEADERSHIP AND INTEGRITY CODE AS SET OUT IN PART II OF THE LEADERSHIP AND INTEGRITY ACT NO. 19 OF 2012 AND IN THE MATTER OF THE COUNTY ASSEMBLY SERVICES ACT NO. 24 OF 2017
Between
Vincent Mariita Omao
Petitioner
and
Duke Onyari (Acting Clerk, County Assembly of Nyamira)
1st Respondent
Speaker, County Assembly of Nyamira
2nd Respondent
County Assembly Service Board
3rd Respondent
County Assembly of Nyamira
4th Respondent
Director, Public Prosecutions
5th Respondent
Director of Criminal Investigations
6th Respondent
Ruling
1. The petitioner sued the responents before the court sitting in Kericho on May 13, 2022, contending that the intended recruitment of staff as signified through vacancy advertisements in the Daily Nation and Standard newspapers on May 12, 2022 violated constitutional provisions, the County Governments Act, and the Employment Act, 2007.
2. The petition was accompanied by a motion under a certificate of urgency, and the court directed the petitioner on May 16, 2022 to serve the responents.
3. On May 23, 2022, the 1st to 4th responents filed a preliminary objection challenging the court's jurisdiction. On May 24, 2022, the Court in Kericho declined territorial jurisdiction and transferred the petition to this court.
4. When the parties appeared before this court on June 7, 2022, it issued directions on the filing and exchanging of responses and submissions ahead of the delivery of judgment on October 12, 2022. The court also stayed the recruitment process.
5. The 1st to 4th responents caused to be filed on June 29, 2022, a replying affidavit sworn by the acting clerk of the County Assembly and the petitioner filed a further affidavit on July 25, 2022.
6. On July 28, 2022, a consent signed by Sam N Mainga & Co Advocates for the petitioner and Makori Mahinda & Co Advocates for the 1st to 4th responents was filed in court.
7. The consent was in the following terms:(i)The responents to follow due process in the recruitment exercise.(ii)The petition be and is hereby marked as settled.(iii)The responents to bear half the costs of the petition, to be assessed by the court.
8. On August 5, 2022, the firm of Mahinda Makori & Co Advocates wrote to the Court indicating that the parties had reached a compromise and consent had been filed on July 27, 2022.
9. Despite filing the consent, the petitioner filed submissions on August 25, 2022.
10. Again, despite the consent, the petitioner moved the court under a certificate of urgency on August 29, 2022, alleging contempt on the part of the members of the County Assembly Services Board and some officers of the Board.
11. The court declined to certify the application as urgent and directed that it be served before the giving of further directions on October 12, 2022.
12. The court has set out the background to create clarity before it endorses the consent filed by the parties on July 28, 2022.
13. The court has not been presented with any material to suggest that the primary parties did not sign the consent and the court, therefore, adopts the consent as an order of the court. The petition is marked as settled in terms of the consent.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 12TH DAY OF OCTOBER 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor petitioner Sam N. Mainga & Co. AdvocatesFor 1st – 4th responents Makori Mahinda & Co. Advocates5th and 6th responents did not participateCourt Assistant Chrispo Aura