Barasa wins appeal against impeached board members, paves way for recruitment

Kakamega County Governor Fernandes Barasa has won an appeal against his County Public Service Board (CPSB), which had obtained court orders allowing them to remain in office unopposed until the end of their term.

On 7th February 2025, a panel of three appellate judges overturned the Employment and Labour Relations Court (ELRC) decision, which had been made after the county executive and assembly joined forces to dismiss board members over alleged impropriety.

The board comprising of the chairperson Catherine Omweno and members Stanley Were, Ralph Wangatiah, and Joel Omukoko had obtained orders allowing them to stay after filing a case in the Labour Court, Kakamega following their sacking on October 2023. 

Justices Hannah Okwengu, Omondi, and Joel Ngugi ruled that the case was constitutional and should have been heard by the High Court (constitutional division) rather than the ELRC.

In its judgment, the Court of Appeal ruled that the Employment and Labour Relations Court (ELRC) lacked jurisdiction to hear and determine the case.

“These questions pertain to the constitutional constraints and requirements governing the procedures and standards for the removal of chairpersons and members of County Public Service Boards. Such matters do not fall within the scope of disputes relating to employment and labour relations and, therefore, were beyond the jurisdiction of the ELRC.

As this Court has repeatedly stated, the ELRC and the Environment and Land Court (ELC) have jurisdiction, where appropriate, to interpret and apply the Constitution—but only in matters arising within the context of employment and labour relations or environment and land disputes.”

Besides reinstating the board, the Labor Court had ordered the county to pay the members damages and cater for their legal fees. 

The Labour Court’s decision led to three appeals. The first, Civil Appeal No. 176 of 2024, was filed by the Governor of Kakamega County, the County Government, and the County Secretary.

The second, Civil Appeal No. 177 of 2024, was filed by the County Assembly, while the third, Civil Appeal No. 179 of 2024, was brought by Dennis Duncan Muhanda. Given that all three appeals arose from the same judgment, they were consolidated and heard together.

During the hearing, legal representatives for each party presented written submissions and oral arguments. The central issue that emerged was whether the Employment and Labour Relations Court (ELRC) had the jurisdiction to determine the constitutionality of removing the Chairperson and members of the County Assembly Board.

The appellants argued that the ELRC lacked jurisdiction, while the respondents maintained that it did, contending that the Board members were county employees.

The court emphasized that jurisdiction is fundamental and must exist from the outset of a case. It reviewed the ELRC’s decision, which had ruled in its favour based on constitutional provisions and procedural fairness.

However, upon further scrutiny, the appellate court found that the case was not a standard employment dispute but a constitutional matter concerning the removal of public officers. Such cases fall under the jurisdiction of the High Court rather than the ELRC.

The court cited precedents to reinforce this stance, concluding that the ELRC erred in handling the case and that the matter should have been presented before the High Court.

On 6th June 2024, the Employment and Labour Relations Court overturned the impeachment of members of the County Public Service Board.

The court by then ordered their immediate reinstatement and awarded each of the four board members Sh1 million in damages.

Those impeached were board chairperson Catherine Omweno and members Stanley Were, Ralph Wangatiah, and Joel Omukoko. Vice-chair Ambrose Subayi and member Sylvia Otunga survived the ouster.

"The petition by members of the board succeeds, the overall process was flawed as rights of the petitioners as guaranteed as those before the court were violated," ruled Justice Jemimah Keli.

Justice Keli found that MCAs who were not members of the County Public Service and Administration signed the impeachment report and the 'notice for attendance did not meet the threshold under the law'.

"On the validity of reasons for removal, as the members were blamed for the action of the governor, who was never questioned, the grounds under Article 251 of the Constitution were not established," the Judge said.

"The assembly having determined the petition before it in the manner it did, it is functus officio, none remains hanging," she added.

"Reliefs granted, the decision on removal and subsequent letters quashed as they violated the Constitution and the rush proceedings unlawful. The 1st, 2nd 3rd respondents are restrained from removing petitioners from office."

Justice Keli ordered the four petitioners to resume duty immediately and awarded each damages of Sh1 million and costs.

But the governor, through his lawyer Patrick Lutta, has applied for stay orders to prevent the petitioners from resuming office on grounds that he intends to appeal the decision of the court.

The CPSB members through their lawyer Calistus Shifwoka, during the hearing of the petition, argued that they were unjustly removed from office, citing procedural irregularities and potential biases in the impeachment process.