https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1407

Otieno & another v Governor of Hoма-bay County & 4 others (Petition E026 of 2026) [2026] KEELRC 1407 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1407 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Petition E026 of 2026 Nzioki wa Makau, J May 25, 2026 IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 27(8) 41, 47, 48, 159, 165, 179 (3) (b),184, 185, 232, 258 & 259 OF THE CONSTITUTION AND IN THE MATTER OF: FAILURE BY THE COUNTY ASSEMBLY OF HOMA-BAY AND GOVERNOR TO TAKE LEGISLATIVE AND OTHER MEASURES TO IMPLEMENT THE PRINCIPLE THAT NOT MORE THAN TWO THIRDS OF THE MEMBERS OF THE ELECTIVE OR APPOINTIVE BODIES SHALL BE OF THE SAME GENDER CONTRARY TO ARTICLES 27(8) AND 179(3)(b) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF VIOLATION OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015, PUBLIC APPOINTMENTS (COUNTY ASSEMBLY APPROVAL) ACT, AND THE COUNY GOVERNMENTS ACT Between Michael Kojo Otieno 1st Petitioner Evance Otieno Oloo Gor 2nd Petitioner and Governor Of Hoма-bay County 1st Respondent County Assembly Of Homa-bay 2nd Respondent Clerk Of Homa-bay County Assembly 3rd Respondent County Attorney Of Homa-bay 4th Respondent and Prof Elijah Munga & 9 others Interested Party Ruling 1.By way of background, the Petitioners instituted this matter through a Petition dated 25th March 2026 challenging the nomination and appointment process of the Homa Bay County Executive Committee Members. Their grievance is that the list of nominees published in the notice appearing in the Daily Nation and The Standard newspapers on 20th March 2026 contravenes Article 27(8) of the Constitution for failure to comply with the two-thirds gender rule. Contemporaneously, they filed an application under certificate of urgency seeking to injunct the vetting process pending hearing and determination of both the application and the Petition. Upon ex-parte consideration of the application in chambers on 30th March 2026, this Court issued orders staying the vetting and approval of the nominees advertised in the notice dated 20th March 2026 pending the inter partes hearing of the application. 2.The issuance of this order prompted the filing of the application presently before the Court dated 30th March 2026 and filed by the 1st and 5th Respondents. Through that application, the 1st and 5th Respondents seek orders setting aside, vacating, varying and discharging the ex parte orders issued on 30th March 2026. They further pray for such other orders as the Court may deem just and expedient, together with costs of the application. 3.The application is premised on the grounds set out on its face and is supported by the affidavits of Mr. Benard Muok, Mr. Elijah Obiny, Mr. Danish Onyango and Mr. Isaac Victor Ongiri. The Applicants contend that the ex parte orders were obtained through material non-disclosure, misrepresentation of facts and an erroneous application of the law. They argue that the Petitioners failed to disclose that the nomination process and appointment of the Deputy Governor had substantially progressed and that the nominee had already been cleared by the IEBC, thereby rendering any challenge amenable only through an election petition. It is further contended that the Petitioners omitted to disclose that the vetting of the other nominees had already been conducted before the County Assembly without objection. The Applicants also assert that the approval process is governed by strict statutory timelines under section 9(1) of the Public Appointments (County Assemblies Approval) Act, 2017. In addition, they maintain that the Petitioners ought to have lodged objections pursuant to section 7(10) of the said Act before approaching the Court. On the basis of the foregoing, the Applicants urge the court to vacate the ex parte orders on the ground that their continued subsistence interferes with a time-bound constitutional process, creates administrative uncertainty and threatens service delivery within Homa Bay County. They further contend that the application has since been overtaken by events. 4.In opposition to the application, the Petitioners filed a replying affidavit sworn on 11th May 2026 by the 1st Petitioner. They contend that the interim orders were properly issued since, at the time the application was filed, the vetting and approval process had not been concluded. According to the Petitioners, the vetting and approval report had neither been tabled before the County Assembly nor debated and adopted, and consequently the process remained incomplete. The Petitioners further maintain that the orders were necessary because the 2nd and 3rd Respondents acted in contravention of section 7(4) and (5) of the Public Appointments (County Assemblies Approval) Act. They therefore argue that the Court properly exercised its discretion after considering the grounds advanced, the remedies sought and the applicable legal principles, and that there is no basis for disturbing the orders. They accordingly urge the Court to uphold the orders in the interest of justice. 5.In support of the application oral submissions were made on behalf of the 1st and 5th Respondents while the Petitioners filed written submissions. 1st and 5th Respondents’ Submissions__ 6.The 1st and 5th Respondents reiterate that the Petitioners failed to disclose that the nomination and vetting process had been concluded. They submit that the nomination commenced on 15th March 2026, that the candidates were approved by the Political Parties Tribunal and subsequently gazetted on 23rd and 25th March 2026, and that the nominees were vetted by the County Assembly on 25th March 2026, thereby concluding the vetting and nomination process. With the foregoing already concluded they maintain that only submission of the County Assembly report remained outstanding. They therefore contend that the orders issued on 30th March 2026 are prejudicial and inimical to section 32(d) of the County Governments Act, which prescribes strict timelines for the appointment of Deputy Governors. Petitioners’ Submissions 7.The Petitioners submit that the 1st and 5th Respondents have failed to demonstrate the substantial loss they stand to suffer if the orders issued on 30th March 2026 are not set aside. They contend that, having failed to comply with the applicable legal requirements, specifically section 7(4) and (5) of the Public Appointments County Assembly Approval Act, the Respondents have not established a proper basis for the orders sought. The Petitioners further submit that the court properly granted the ex parte orders after being satisfied that they had established a prima facie case with a probability of success, that they stood to suffer irreparable harm in the absence of the orders, and that the balance of convenience tilted in their favour. Consequently, they contend that granting the orders sought by the Respondents would undermine constitutional values and the rule of law. Disposition 8.The orders granted on 30th March 2026 are challenged by the Applicants herein. The argument is that the same have been overtaken by events as the Applicants argue they were issued after the gazettement of the Interested Parties. On the converse, it is the contention of the Petitioners that in the process of recommendation for appointment of the County Executive Committee Members and the Deputy Governor, Homa Bay County did not meet the mandatory requirement and threshold set by the Constitution prompting the issuance of ex parte orders. 9.The apprehension of the Petitioners is that the Petition will be rendered otiose. Should the process of appointment continue to conclusion without fetter, the Petition would be moot and a mere academic exercise. Granted there are serious constitutional issues raised in respect to Article 27 of the Constitution of Kenya, the Court is minded to maintain the orders in place to allow for the ventilation of the issues herein. The orders issued on 30th March 2026 are confirmed and shall subsist until the hearing and determination of the Petition. Application by Respondents is dismissed with costs being in the cause. Further directions on the disposal of the Petition will follow this Ruling.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF MAY 2026NZIOKI WA MAKAU, MCIARB.JUDGE