https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11475

Omondi v Migori County Assembly; County Public Service Boards National Consultative Forum & 6 others (Interested Parties) (Petition E004 of 2024) [2026] KEHC 11475 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 11475 (KLR) Republic of Kenya In the High Court at Migori Petition E004 of 2024 ACA Ong’injo, J July 9, 2026 Between CPA, Marvin Ngei Omondi Petitioner and The Migori County Assembly Respondent and The County Public Service Boards National Consultative Forum Interested Party Hon. Jared Odhiambo Opiyo Interested Party Ms. Jemimah Adhiambi Were Interested Party Mr. Hesbon Otieno Omwa Interested Party Mr. Enock Odhiambo Achieng Interested Party Ms. Pheoebe Adhiambo Aloo Interested Party Mr. Range Mwita Maroa Interested Party Ruling 1.Before this Court is the Respondents’ application dated 26th February 2025 challenging the jurisdiction of this court to hear and determine the Petition dated 30th May 2024. The Petitioner responded to the application through a replying affidavit sworn on 25th November 2025. Upon hearing of the application, parties were directed to file their respective submissions. The Applicant/Respondents submissions are dated 28th November 2025 while the Petitioner/Respondents submissions are dated 4th December 2025. 2.The Petitioner claims to have instituted this Petition in public interest, on his own behalf and on behalf of 2nd to 7th Interested parties. The Interested Parties are former Chairperson and Members of the Migori County Assembly Service Board whose tenure of office was brought to an end by the County Assembly of Migori through a motion 31st January 2023 and ceased to hold office from 6th February 2023. Aggrieved by their removal, the 2nd -7th Interested Parties moved to Kisumu Employment and Labour Relations Court through a ELRC Petition 002 of 2023 dated 24th January 2023 Case at the ELRC Petition number 002 of 2023 3.In this court, the 2nd to 7th Respondents were the Petitioners and moved the court with the following prayers:-i.The Honourable Court be pleased to interrogate and determine the following thematic questions:i)Whether the appointment of the acting secretary/CEO to the Migori County Public Service Board, Vide the Letter dated 11th October,2022 and referenced CGM/GVN/MCPSB.22/Vol.1.002 can be lawfully undertaken by the first Respondent in light of the provisions of Sections 59(1)(b) and 63(1) County Governments Act?ii)Whether the impugned actions of the Respondents, itemized inter alia at para 18 to 29 hereof are an abridgement on the Independence of the Migori County Public Service Board, and an attempt to unlawfully subject them to the control and direction of the first Respondent?iii)Whether the authority, power and/or discretion of the Respondents to facilitate removal process of members of the Migori county public service board is amenable and/or subject to oversight and supervision by this Hon Court?iv)Whether the impugned process commenced by the Respondents violates the Petitioners fundamental rights and freedoms and the same is for immediate vacation and setting aside?ii.The Honorable Court be pleased to issue the following orders that:i.A declaration be and is hereby issued to declare that the purported appointment of Judith Okinda, as the Ag Secretary/CEO, Migori County Public Service Board vide the Letter dated 11th October, 2022 and referenced CGM/GVN/MCPSB.22/Vol.1.002 is unconstitutional for violating Sections 59(1)(b) and 63(1)(b), County Governments Act, both of which entrench the Boards exclusive authority to “appoint persons to hold or act in offices of the Migori county public service.”ii.A declaration be and is hereby issued that the Impugned actions of the Respondents, are an unlawful abridgement on the Independence of the Migori County Public Service Board.iii.A declaration be and is hereby issued that the authority, power and/or discretion of the Respondents to facilitate removal process of members of the Migori county public service board is amenable and/or subject to oversight and supervision by this Hon Court.iv.A declaration be and is hereby issued that commenced process of removal of the Petitioners as chairperson, Vice-chairperson and members of the Migori county public service board, violates the Petitioners’ rights to fair labor practices, due process, equal protection of law and hon-discrimination, right to human dignity, freedom and security of the person, right to property, right to fair administrative action and right to fair hearing enshrined in Articles 27,28,29,40, 41,47 and 50 of the Constitution as particularized in this Petition, and further violates the values of public service and rational values under Article 232 and 10, Constitution respectively.v.A judicial review order of certiorari be and is hereby issued calling up and quashing the impugned decision of the 1st Respondent reposed in the Letter dated 11th October, 2022, ref. CGM/GVN/MCPSB.22/Vol.1.002purportedly appointing Judith Okinday as the Ag Secretary/CEO, Migori County Public Service Board and all consequential actions thereon.vi.A Judicial review Order of prohibition be and is hereby issued barring the Respondents from in anyway howsoever, commencing and proceeding with the process of removal of the Petitioners as Chairperson, vice-chairperson and members of the Migori county public service board as commenced via the Gazette Notice published on 11th January,2023.vii.Judicial review order of prohibition be and is hereby issued barring the Respondents, Jointly or severally, directly or indirectly from in anyway howsoever interfering with the independence of the Petitioners’ lawful execution of their mandate.viii.A judicial review order of mandamus be and is hereby issued directing the Respondents, and their agents to restore the Petitioners’ access to the Board offices including returning all necessary equipment, documents and tools necessary for the effective execution of their mandate, immediately nonetheless within three (3) days of the Order of the Hon Court.ix.The Hon Court be pleased to award a reasonable amount in general damages for the violations of the Petitioners fundamental rights and freedoms, as evinced herein.x.Costs of the Petition be awarded for each of the Petitioners on a full indemnity basis. 4.The Petition was accompanied with a Motion under certificate of urgency seeking various interlocutory orders. The Respondent opposed the Motion through a ground of opposition dated 26th January 2023. In a ruling dated 31st January 2023, the court did not grant the interlocutory orders and directed that both the motion and the Petition be taken together. Both the Petition and the Motion were heard on merit and a judgement was delivered on 24th May 2023. While dismissing the Petition, the Learned Justice Radido stated that the Court lacked first instant jurisdiction on appointment of Judith Okida as the acting Secretary/Chief Executive. The Court further held that the Petitioners did not prove that the Respondents’ interfered with their independence and violated their rights. 5.In the meantime Mokoro Jared John and Beatrice Aoko Ochieng, approached the Migori Chief Magistrate’s Court in Migori CMCC E012 of 2023, Mokoro Jared John & Another v Speaker, County Assembly of Migori & 2 Others seeking interim injunctive orders restraining the respondents from commencing and/or proceeding with a special sitting which was to be held on 31/01/2023 for consideration of the County Assembly’s Ad Hoc Committee's report on the petition for the removal of the Chairperson and members of Migori County Public Service Board. The interim orders they sought were granted by the Magistrate’s Court on 30/01/2023. Prompting the Respondent to file a Judicial Review application at the ELRC, Kisumu being Kisumu ELRC JR No. E001 of 2023. The suit sought, primarily, an order quashing the ex parte proceedings and orders in Migori CMCC E012 of 2023. The ELRC granted leave to the ex parte applicants to bring judicial review proceedings and allowed the leave to operate as stay of the orders dated 30/01/2023. 6.Subsequently, the Interested parties herein instituted Judicial Review Nairobi JR E017 of 2023 dated 14th February 2023 seeking for the following orders:-1.That this matter be certified urgent and the requirement to notice to parties be dispensed with.2.That leave be granted to the applicant to apply to this Honorable Court for declaratory orders that the Unfair Administrative Action Reposed in the House Resolution on the Petition for the removal of the Chairperson and Members of The Migori County Public Service Board as adopted by the Migori County Assembly on 6Th of February, 2023; is in breach of the applicants’ rights.3.That leave be granted to the applicants to apply to this Honorable Court for orders of certiorari to call, remove, deliver up to the court and quash the Unfair Administrative Action Reposed In The House Resolution On The Petition For The Removal Of The Chairperson And Members Of The Migori County Public Service Board As Adopted By The Migori County Assembly On 6Th Of February, 2023; and all actions and/or decisions made subsequent thereon.4.That leave be granted to the applicant to apply to this Honorable Court for orders of prohibition to restrain the respondent whether by itself or through its agents or officers; or anyone claiming under the authority of the impugned administrative action, from implementing, acting upon or in anyway howsoever giving effect to or enforcing in any manner or form interfering with the applicants, on account of the Unfair Administrative Action Reposed In The House Resolution on the Petition For The Removal of the Chairperson and Members of the Migori County Public Service Board as Adopted By The Migori County Assembly on 6th of February, 2023.5.That the grant of such leave under prayer 2, 3 and 4 above, to operate as a stay against the implementation, operationalization, validity, execution and/or coming into effect of the impugned decision, resolution, recommendations and or directive by the respondents in the Unfair Administrative Action Reposed In The House Resolution on the Petition For The Removal of The Chairperson and Members of the Migori County Public Service Board as adopted by the Migori County Assembly on 6th of February, 2023 and all actions and/or decisions made subsequent thereon pending the hearing and determination of the substantive application for judicial review herein.6.That this Honourable Court to grant any further and or consequential orders necessary to give effect to the justice of the matters herein, including directions on an expeditious filing and hearing of the substantive judicial review motion herein; and,7.That the costs of this application be provided for in the cause. 7.This file was first placed before Justice Chigiti, J. sitting at Milimani High Court on 15th February, 2023. The learned judge granted the appellants leave to commence judicial review proceedings against the adoption of the resolution by the Migori County Assembly on 6th February, 2023. The file was then transferred to Migori High Court as the appropriate forum and placed before Lady Justice Wendo J for disposal. In the meantime, there were various applications and preliminary Objections filed before the Judge, revolving on the jurisdiction of the court to hear and determine the Judicial Review. Directions on the applications were taken and rival submissions filed by the advocates and a ruling was delivered. The Judge held that the application before her was res judicata as the same had been heard to finality in Kisumu ELRC Petition no E002 of 2023 and Migori CCMC No. 12 of 2023. The court further held that it had no jurisdiction to hear and determine the Judicial Review as the issues involved employer -employee relationship, matters that fall within the Jurisdiction of the Employment and Labour Relations Court. 8.Dissatisfied with this decision, the Applicant preferred an appeal to the high Court at Kisumu, being Kisumu Civil Appeal No. E176 0f 2023 where it was dismissed for lack of merit on 14th May 2024 9.The 2nd -7th Interested Parties subsequently came back to this Court by way of the present Constitutional Petition seeking for answers to the following questions:-(i)Whether the authority, and/or power of the County Assembly in the manner and instance of exercise of the authority in receiving, approving for admission, consequent consideration and ultimate adoption of the 3 impugned word-for-word similar petitions from members of the public is subject supervision by this Hon Court?(ii)Whether County Assembly subject action/decision to receive, and, approve for admission the 3 impugned word-for-word similar petitions, while they irregularly bore affidavits and annexures, contravened the law and thus rendered the consequent consideration and ultimate adoption of the 3impugned word-for- word similar petitions fatally defective and everything premised thereon?(iii)Whether the County Assembly failure and omission (without prejudice to item no(ii) above) to notify and avail to the affected persons the affidavits and annexures lodged with the 3impugned word-for-word similar petitions, contravened the law and thus rendered the consequent consideration and ultimate adoption of the 3 impugned word-for-word similar petitions fatally defective and everything premised thereon?(iv)Whether the Respondents failure and omission to undertake any meaningful, and informed public participation, consequent to the admission for consideration and ultimate adoption of the 3 impugned word-for-word similar petitions contravened the law and thus rendered fatally defective and everything premised thereon?(v)Whether the Respondents failure and omission to allow the affected persons an opportunity to cross-examine the petitioners who had lodged the 3 impugned word-for-word similar petitions contravened the law and thus rendered the consequent consideration and ultimate adoption of the 3 impugned word for-word similar petitions fatally defective and everything premised thereon?(vi)Whether the Respondents failure and omission to receive and consider the reply in the nature of a joint written memorandum from the affected persons contravened the law and thus rendered the consequent consideration and ultimate adoption of the 3 impugned word-for-word similar petitions fatally defective and everything premised thereon?(vii)Whether the Respondents failure and omission to subject the impugned word-for-word similar petitions, to the appropriate Migori County Assembly Sectoral committees for Labor and social Welfare as well as that on Justice and Legal Affairs -established under Standing Order 192 at para 5 thereof as read with the 2nd Schedule - and instead subject the same to an Ad hoc committee, contravened the law and thus rendered the consequent consideration and ultimate adoption of the impugned word-for-word similar petitions fatally defective and everything premised thereon?(viii)Whether the Respondent action to ultimately adopt the impugned word-for-word similar petitions, whereas they had failed to evince the grounds prescribed in law against each and every member of the Migori County Public Service Board, contravened the law and thus rendered the consequent consideration and ultimate adoption of the 3 impugned word-for-word similar petitions fatally defective and everything premised thereon?(ix)Whether County Public Service Boards are in law body corporates, whereby only a single member can be sought to be removed at a time, and whether it is therefore improper to collectively seek to remove their members?(x)Whether the Magistrates Court, can issue an Order restraining the exercise of an administrative action of County Assembly, and whether a disregard of such Court order, contravenes the law and thus rendered the consequent consideration and ultimate adoption of the 3 impugned word-for-word similar petitions fatally defective and everything premised thereon?(xi)What is the status of a County Public Service Board, and its composition and staffers, upon filing of a Petition for their possible removal before the County Assembly? 10.The Respondent filed a Replying affidavit dated 19th June 2024 opposing the Petition dated 31st may 2024 and seeking for it to be to be dismissed with cost. 11.Following the failure by the Migori County assembly to respond to the demand of the 2nd to 7th Interested Parties for Hansard Report, the Petitioner filed an application dated 5th August 2024 seeking that this Honourable court compel the Respondent to show to the court and the 2nd to 7th Interested parties herein for inspection of documents and for information related to the 2nd to 7th Interested Parties’ removal from the office process. 12.The Respondent filed a replying affidavit sworn on the 22nd July 2024. Directions were taken on 16th of September 2024 that the application would be canvassed by way of written submissions. Parties filed their respective submissions and the court allowed the application dated 5th August 2024 vide a ruling dated 30th January 2025. 13.The order of the court was complied with and before the matter could be set for directions, the Respondent filed a Motion dated 26th February 2025 seeking for orders that:-1.Spent2.The Petition dated 30th May 2024 be struck out for being res judicata, have been commenced and are being sustained contrary to the principle of issue estoppel as the subject matter of the present petition had been determined before courts of competent jurisdiction.3.Respondent be paid the cost of the Petition4.The cost of this application be provided for. 14.The Petitioner filed a replying affidavit sworn on the 2nd November 2025. They contend that this Court has jurisdiction under Articles 10 (1) (a) & (b) and (2), 27 (1) 7 (2), 28, 29(d), 37,47 (1),50 (1) and 251 to determine whether their removal violated the Constitution and to grant the constitutional remedies sought. 15.Directions were taken and the parties filed their rival submissions. The Respondents’ submissions were dated 28th November 2025 while the Petitioners submissions were dated 14th December 2025 16.Having considered the pleadings, the preliminary objection, the rival submissions and the applicable law, two issues arise for determination:1.Whether this Court has jurisdiction to entertain the petition; and2.Whether the petition is barred by the doctrine of res judicata. 17.The question of jurisdiction is foundational as was stated in Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), jurisdiction is everything and without it a court must down its tools. The Constitution has distributed judicial authority among courts of equal status. Under Article 162(2)(a), Parliament established the Employment and Labour Relations Court to determine disputes relating to employment and labour relations. That Court is not subordinate to the High Court but is a court of equal status exercising a distinct constitutional mandate. 18.The substance of the present petition is the Interested Parties' removal from office as Chairperson and Members of the Migori County Assembly Service Board respectively. A quick perusal of the proceedings before Kisumu Employment and Labour Relations Court ELRC Petition No E002 of 2023, the Migori HC Judicial Review No. E003 of 2023 and the Kisumu Court of Appeal No. E176 of 2023 indicates that the question that formed the subject of those proceedings are the same ones that have been raised in the current petition. The Interested Parties invited each Court to determine the legality and constitutionality of their removal. It is noteworthy that the Kisumu ELRC Petition no. E002 of 2023 was rightfully filed under a Constitutional Petition which is among the key jurisdiction of the Employment and Labour Relations Court on Constitutional issues arising from employment disputes. This was affirmed in Republic v Karisa Chengo & 2 Others Petition No. 5 of 2015, (2017) KESC 15 (KLR) where it was held:-"Section 12(1) of the Employment and Labour Relations Court Act further provides for the jurisdiction of the ELRC in the following terms:"(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162 (2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including—(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employers’ organization and a trade union organization;(d)……………………” 19.The mere fact that the Interested Parties have couched their grievances as constitutional violations and invoked Articles 10 (1) (a) & (b) and (2), 27 (1) 7 (2), 28, 29(d), 37,47 (1),50 (1) and 165 of the Constitution does not alter the character of the dispute. A litigant cannot confer jurisdiction upon the High Court by re-labelling an employment dispute as a Constitutional Petition when the Constitution has expressly assigned such disputes to a specialized court. 20.Even assuming, for argument's sake, that this Court possessed jurisdiction, the Petition would still encounter the insurmountable bar of res judicata. Section 7 of the Civil Procedure Act embodies the principle that there must be an end to litigation. The doctrine applies with equal measure to Constitutional litigation, as was affirmed by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others, Petition No. 17 of 2015 (2021) KESC 39 (KLR) (Civil)as follows at Paragraph 12 that:-"the court, when determining a constitutional petition, was empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review was the power to substitute a decision which the court could do when determining a constitutional petition. The court was further empowered to grant not just judicial review orders but any other relief deemed fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” 21.The parties before this Court are substantially the same as those who litigated before the Employment and Labour Relations Court in Kisumu, Judicial Review in Migori and Appeal at the Cout of Appeal in Kisumu. The subject matter is identical, namely the legality and constitutionality of the 2nd -7th Interested Persons’ removal from office. The issues were directly and substantially in issue before a court of competent jurisdiction, where they were heard and finally determined. The judgments of the Employment and Labour Relations Court were never appealed against and the judgment of the High Court in Judicial Review proceedings were affirmed on appeal by the Court of Appeal. Those decisions have neither been reviewed nor set aside and remain binding. The Petition before this court however has been brought by a Petitioner on behalf of the Interested Parties on public interest. This court finds that it has been a move by the Interested parties in a bid to re- litigate the case and evade the doctrine of Res Judicata. In the case of Omondi vs National Bank of Kenya Ltd & others (2001) EA 177, the Court stated that: “Parties cannot evade the doctrine of res judicata by merely adding parties or causes of action in a subsequent suit.” 22.This Court cannot sit on appeal over decisions of the Employment and Labour Relations Court that have never been appealed against and on the decision of the Court of appeal which have not been reviewed or set aside. To entertain this petition would amount to reopening litigation that has been conclusively determined and would offend both the Constitutional distribution of jurisdiction and the doctrine of finality in litigation. 23.Accordingly, I find and hold that this Court lacks jurisdiction to entertain the Petition. I further find that, in any event, the Petition is barred by the doctrine of res judicata. 24.The Motion dated 26th February 2026 is allowed with cost. 25.Consequently, the Petition is hereby struck out with costs to the Respondents. 26.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI THIS 9TH DAY OF JULY 2026A. ONGI’NJOJUDGEIn the presence of: