Nyambane v Duke Onyari, Acting Clerk, County Assembly of Nyamira & 5 others; Nyaribo & 11 others (Interested Parties) [2023] KEELRC 605 (KLR)

Nyambane v Duke Onyari, Acting Clerk, County Assembly of Nyamira & 5 others; Nyaribo & 11 others (Interested Parties) (Petition E050 of 2022) [2023] KEELRC 605 (KLR) (15 March 2023) (Judgment)

Neutral citation: [2023] KEELRC 605 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition E050 of 2022

S Radido, J

March 15, 2023

In The Matter Of Articles 1(3)(c), 2(1),3(1), 10, 22, 23(1), 23(3), 73, 74, 75, 79, 80, 159(1), 160(5), 161(2)(b), 165(3)(a),(b) And (3)(d)(ii), 166(2)(c) And (3), 258, 259(1) And (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 And In 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

Evans Atunga Nyambane

Petitioner

and

Hon 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 of Public Prosecutions

5th Respondent

Director of Criminal Investigations

6th Respondent

and

Job Rodgers Nyaribo

Interested Party

Jones Onduko

Interested Party

Lameck Osoro Kometa

Interested Party

Vincent Nyakieni

Interested Party

David Matwa Nyabwari

Interested Party

Joash Nyachiro Oruko

Interested Party

Grace Masese Bundi

Interested Party

Elvis Ondieki Mongare

Interested Party

Aloys Gatwere

Interested Party

Edson Mayaka Mogeni

Interested Party

Gladys Motanya

Interested Party

Winny Nyaboke Makori

Interested Party

Judgment

1. Evans Atunga Nyambane (the petitioner) sued the respondents on December 19, 2022, alleging that the recruitment and subsequent appointment of the 12 interested parties on July 29, 2022, was unlawful and beyond the approved establishment.

2. Filed at the same time was a motion under certificate of urgency seeking interim relief.

3. The court declined to issue anyex-parte interim relief because the impugned recruitment had been done in May 2022.

4. The court directed that the motion and petition be taken together, and further directed the parties to file and exchange pleadings and submissions.

5. As a result, the following were filed:i.petitioner’s submissions.ii.replying affidavit by the clerk of the county assembly.

6. The court has considered the motion, petition, affidavits and submissions.

7. In the clerk’s replying affidavit, he deposed that the county assembly service board had met and prepared a report in December 2022. The report, which was exhibited to the replying affidavit indicated that it had been resolved that the recruitment or appointment of the interested parties be cancelled due to illegalities.

8. The replying affidavit also indicated that the Ethics and Anti-Corruption Commission had commenced investigations into the recruitment process of the 12 interested parties.

9. The petitioner did not file any rebuttal to the replying affidavit meaning that the substratum upon which the petition revolved was determined by the decision of the county assembly service board to cancel the recruitments and revoke the appointment of the interested parties.

10. The petition has been overtaken by events and, therefore, there is no live dispute for the court’s adjudication.

11. The court also notes that the recruitment of the 12 interested parties was the subject of Kisumu petition No 4 of 2022, Vincent Mariita Omao v Hon Duke Onyari & Ors, and that the petition was compromised when a consent was entered into on July 27, 2022, and adopted by the court on October 12, 2022.

Orders 12. The petition is dismissed with costs.

DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 15TH DAY OF MARCH 2023. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Petitioner Sam N. Mainga & Co. AdvocatesFor 1st – 4th Respondents Mose, Mose and Mose AdvocatesCourt Assistant Chrispo Aura