Homa Bay Governor Gladys Wanga has secured a significant legal victory after the Employment and Labour Relations Court in Kisumu dismissed a petition challenging the appointment of Deputy Governor nominee Danish Otieno Onyango.
The ruling paves the way for Mr Onyango to serve the remainder of the current term, with less than a year left before the next General Election.
In a 30-page judgment delivered on July 30, Justice Nzioki Makau held that the petitioners had failed to demonstrate that Governor Wanga, the Homa Bay County Assembly or the other respondents had violated either the Constitution or the law during the nomination and approval process.
Mr Onyango was nominated by Governor Wanga following the resignation of Joseph Oyugi Magwanga on February 26, 2026.
Mr Magwanga stepped down, citing irreconcilable differences with the governor, leaving the office of deputy governor vacant.
At the time of his nomination, Mr Onyango was serving as the County Executive Committee Member for Roads and Public Works.
His nomination, together with proposed changes to the county executive, was challenged in court by Michael Kojo Otieno and Evance Otieno Oloo Gor.
The petitioners argued that the county had failed to comply with the constitutional requirement that no more than two-thirds of members of elective or appointive public bodies should be of the same gender.
Court documents showed that the Homa Bay County Cabinet comprised 11 members, nine men and two women. The petitioners argued that this violated Articles 27(8) and 179(3)(b) of the Constitution.
Homa Bay Governor Gladys Wanga and her former deputy Oyugi Magwanga.
Photo credit: George Odiwuor | Nation Media Group
They also challenged the approval process, alleging that the county had failed to comply with the Public Appointments (County Assemblies Approval) Act, 2017.
According to the petitioners, notices for the vetting of Governance Chief Executive Committee Member (CECM) nominee Isaac Ongiri and Trade CECM nominee Obiny Dede had not been published as required, while the mandatory seven-day notice period for public participation had not been observed.
Justice Makau dismissed the arguments, ruling that the petitioners had failed to establish any constitutional or statutory violation.
While acknowledging the importance of the gender concerns raised, the judge held that the constitutional requirement could not be interpreted in isolation from the legal framework governing county appointments.
The petitioners had argued that the county government had failed to take sufficient measures to achieve the constitutional gender threshold.
However, Justice Makau found that the law governing county governments does not prescribe a precise formula for attaining the two-thirds gender rule in every circumstance.
“This is therefore an arena where there would be a degree of fluidity in the achievement of the two-thirds gender rule,” the judge ruled.
He also addressed the composition of the county’s top leadership, noting that Governor Wanga is a woman while her deputy governor nominee is a man.
The court held that this arrangement did not offend the constitutional principle on gender representation.
“The governor is of the female gender, the incoming deputy governor of the male gender. I see nothing wrong with the appointment of the deputy governor as he qualifies in the paradigm of the two-thirds gender rule since the appointment is neither deemed discriminatory nor inconsistent with the provisions of Article 27 of the Constitution of the Republic of Kenya,” Justice Makau said.
The judge relied on the Supreme Court’s interpretation of the principle of progressive realisation, observing that the achievement of gender equality in public institutions may, depending on the nature of the institution and the applicable legal framework, be attained progressively rather than instantaneously.
He noted that while some constitutional bodies have express provisions prescribing gender composition, county governments operate under a framework that does not set out a rigid formula for meeting the two-thirds threshold in every instance.
Homa Bay Governor Deputy Governor nominee Danish Otieno Onyango.
Photo credit: Pool
“There is no evidence placed before the court that there was exclusion of any of the nominees in the process, nor is there any evidence that there was exclusion of the public in the public participation aspect of the appointments,” Justice Makau ruled.
The court further found that the county had complied with the legal requirement to notify the public of the vetting exercise.
The appointment process had briefly stalled after Justice Makau issued conservatory orders on March 30, 2026, pending the hearing and determination of the petition.
Having considered the evidence, the judge concluded that the petitioners had failed to establish a breach of the Constitution, including the two-thirds gender principle, or demonstrate any failure by the county government and the County Assembly to comply with the law.
“The court returns on the question of the alleged breach of the Constitution of Kenya on the two-thirds rule and finds that there is no demonstrated breach as far as this petition is concerned,” he said.
