[2021] KEELRC 283 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

PETITION NO. E056 OF 2021

THOMAS TONGI MOGENDI....................................................1ST PETITIONER

ANDREW ONSERIO ONDIMU...............................................2ND PETITIONER

DANIEL OMWOYO MBAKA................................................3RD PETITIONER

VERSUS

KISII COUNTY ASSEMBLY SERVICE BOARD.............1ST RESPONDENT

CLERK KISII COUNTY ASSEMBLY...............................2ND RESPONDENT

COUNTY ASSEMBLY OF KISII.......................................3RD RESPONDENT

THE DIRECTOR HUMAN

RESOURCE MANAGEMENT, KISII COUNTY..........4TH RESPONDENT

THE PAYROLL MANAGER, KISII COUNTY.............5TH RESPONDENT

RULING

1. This ruling relates to the representation of the 1st Respondent in the instant petition. Ms. Brenda Nyamwaya filed a Notice of Appointment dated 1st November, 2021 and filed in court on 2nd November, 2021, to represent the 1st and the 3rd Respondents, while the Firm of Omusolo Mungai & Co. Advocates also filed a Notice of Appointment, to represent the 1st Respondent.

2. During hearing, Parties could not agree on who has instructions to act for the 1st Respondent and further, both Counsels had contradicting instructions on the petition, necessitating the need for this court to give directions on the issue of representation.

3. Ms. Githongo holding brief for Ms. Kiiru, told the court that they are among Advocates prequalified by the 1st Respondent and that their Firm had represented the 1st Respondent in previous suits. It is her submission that the dispute arises from a disagreement between members of the 1st Respondent, where one member is not agreeable to the decision of the majority.

4. Ms. Githongo submitted that members of the 1st Respondent sought an uninterested party to represent them in this suit and that is how their Firm was picked to act for the 1st Respondent in this matter. She further submitted that Ms. Nyamwaya, being an In-house Counsel, may be called as a witness in the matter and may thus not be the right person to represent the Respondents in the petition.

5. It is Ms. Githongo’s further submission, that the Board of the 1st Respondent met and resolved to appoint them to act for the 1st Respondent in this matter and are thus properly on record as representing the 1st Respondent.

6. Ms. Nyamwaya submitted that she has instruction to act alongside Ms. Muma for the 1st and 3rd Respondents. She relies on the affidavit sworn by Mr. James O. Nyaoga, the Clerk of the county Assembly of Kisii.

7. A joint replying affidavit sworn by Hon. David Ondimu Kombo, Hon. Daniel Ombasa Apepo and Dr. Carren Nyanganyi Nyangweso was filed by the Firm of Omusolo Mungai & Co. Advocates in support of their position.

Determination

8. I have considered the submissions by both counsels and the affidavits filed in the matter. The issues of quorum in the meetings where the decision on who is to represent the 1st Respondent in this the matter, is not subject of the proceedings before this court and this court declines an invitation to the Respondents’ Board room wrangles.

9. The issue for this court to determine, is who by law has authority to issue instructions for representation such as this, and who has he/she instructed to act for the 1st Respondent in this matter.

10. By a letter dated 27th October, 2021, Mr. James O Nyaoga, the Secretary to the 1st Respondent and the Clerk of the 3rd Respondent, appointed Ms. Brenda Nyamwaya and Ms. Grace Muma to act for the 1st and 3rd Respondents in the petition.

11. Similarly, the Firm of Omusolo Mungai & Co. Advocates, were instructed vide a letter dated 29th October, 2021 by one Hon. David Ondimu Kombo, to act for the 1st Respondent in the same petition.

12. Section 17 of the County Assembly Services Act, 2017, provides as follows:

“(1) The Secretary shall be—

(a) the chief executive officer of the Board;

(b) the accounting officer of the Board;

(c) the administrative head of the Service;

(d) the custodian of the Board's records;

(e) responsible for—

(i) the execution of the decisions of the Board; and

(ii) assignment of duties and supervision of the staff of the Board;

(f) the preparation and submission of the programmes necessary for the achievement of the Board's mandate for approval by the Board;

(g) causing to be kept records of the proceedings and minutes of the meetings of the Board and such other records as the Board may direct”

13. Arising from these provisions, it is clear that the Secretary of the 1st Respondent, who is the Clerk of the Assembly, is the person who by law, keeps records of proceedings and minutes of the meetings of the Board, is the custodian of Board records and has the authority to execute Board decisions on behalf of the 1st Respondent.

14. It then follows that individual members of the 1st Respondent do not have authority to execute Board decisions like they have, in purporting to issue instruction to the Firm of Omusolo Mungai & Co. Advocates to act for the 1st Respondent in this petition.

15. The Upshot is that:

I. The Notice of Appointment of Advocates filed by the Firm of Omusolo Mungai & Co. Advocates, to act for the 1st Respondent is expunged from the court record.

II. Ms. Brenda Nyamwaya and Ms. Grace Muma are deemed to have lawfully been instructed and are properly on record for the 1st Respondent in this matter.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT ATKISUMU THIS 2ND DAY OF DECEMBER, 2021.

CHRISTINE N. BAARI

JUDGE

Appearance:

Mr. Ochoki present for the Petitioners

Ms. Nyamwaya present for the 1st & 3rd Respondents

Ms. Ochwal Present for the 2nd Respondent,

Ms. Kiiru Present for the 1st Respondent

Mr. Onsongo present for the Interested Parties

Ms. Christine Omollo-C/A