The Employment and Labour Relations Court in Kisumu has dismissed with costs an application by the embattled members of the Kisii County Public Service Board seeking to keep them in office.
The case was filed by Nancy Nyanganyi Nyamwange, Jackson Bogonko, Patrick Mogusu Momanyi, John Machuka Ndege and Judy Omare Nyakerario on May 4.
Justice Stephen Radido ruled that the quintet had failed to make material disclosure of pending or prior proceedings on the same matter in different courts and had abused the court process.
Justice Radido found that the application was incompetent and defective because the quintet had failed to attach affidavits and statutory declarations to the application for leave to commence proceedings.
The applicants had also failed to make out a case for the grant of judicial review orders, the court said.
“The Court orders the Motion dated May 4, 2023 dismissed with costs to the Respondents and Interested Party,” the ruling read.
The ruling is a victory for the Kisii County Assembly, which is already in the process of vetting and confirming the names of a new CEO and members of the board after Governor Simba Arati forwarded the names on November 6, 2023.
Among the names submitted to the Assembly is that of Elijah Julius Obebo for the position of chairperson.
The names of Jared Omwoyo, Kefah Mose, Dr Sylus Ayunga, Jane Nyabuto and Victoria Masese were forwarded for consideration as board members.
A petition by Benson Atika seeking the removal of the embattled board members prompted the Kisii County Assembly's Labour, Manpower and Social Welfare Committee to grant the embattled board members an opportunity to be heard from April 12 to 17, 2023.
However, on April 11, they went to the Kisumu court seeking to stop the Assembly's proceedings on the grounds that their rights were in danger of being violated.
But the Assembly filed a notice of preliminary objection on April 20, 2023, claiming that the application was fatally flawed.
The board members filed a notice of withdrawal on April 25, which was approved by the court on June 6, 2023.
On April 13, 2023, the applicants applied to the Nairobi Court for leave to commence judicial review proceedings through Nairobi Misc Civil Application No. E015 of 2023 (later transferred to Kisumu and renumbered Kisumu Judicial Review No. 1 of 2023).
The Nairobi court granted the leave but refused to order the leave to operate as a stay. The court then ordered that the case be transferred to the Kisumu court for further directions.
Justice Radido noted that the applicants had not disclosed to the Nairobi court that they had applied for similar leave in Kisumu on April 11, 2023.
On April 24, 2023, the ex-parte applicants filed a third application in the Kisumu court seeking leave to commence judicial review proceedings against the respondents on the same grounds.
Again, in filing this third application, they did not disclose the existence of Nairobi Misc Civil Application No. E015 of 2023 (transferred to Kisumu and renumbered Kisumu Judicial Review No. 1 of 2023) or Kisumu Judicial Review No. E012 of 2023.
“The ex-parte applicants filed at least 3 cases on the same dispute. There was no disclosure of previous proceedings even where leave had been granted. The disclosure was a legal and factual necessity. The failure to disclose the myriad proceedings amounted to abuse of the court process and forum shopping,” Justice Radido said.
