The High Court in Kisumu on Thursday declared that nine County Executive Committee members nominated by Siaya Governor Cornel Rasanga did not meet requirements.
The judgement was delivered by Justice Kanyi Kimondo, who was part of a bench of three that heard the petition. The others were justices Jaden Thuranira and J. Onyiego.
Justice Kimondo said the nominees did not meet the requirements of section 35 (3) (d) of the County Government Act.
The law insists on knowledge, experience and a distinguished career of not less than five years in the field relevant to the portfolio of the department to which the person is being appointed.
The petitioners are Mrs Brenda Achieng Ongalo, Mr Isaac Okinyi and Mr James Anyiko who sued the Siaya assembly, Speaker George Okode, Governor Rasanga and the county government.
They wanted the court to declare the nomination of all 10 executives as “unconstitutional, null and void”.
Through their lawyer Aggrey Mwamu, they said the list of 10 members that was submitted to the assembly on September 18, 2017 violated the Constitution and statutes.
The petitioners also sought a conservatory order barring Governor Rasanga from resubmitting the list and prohibiting the county assembly from receiving such nominees.
They further wanted the clerk of the assembly or the speaker restrained from re-submitting the list or receiving such nominees or any other name other than of people meeting requirements in line with the Constitution.
“For instance, three of the nominees hailed from the governor’s Alego Usonga Sub-county while two were his close relatives or associates from South Gem,” Mr Mwamu said.
The complainants also claimed that the list omitted the youth and persons living with disabilities.
Justice Kimondo said, "We find that the governor did not have the power or authority to resubmit the name of a candidate whose nomination had been rejected by the assembly unless the circumstances relied on for the rejection did not exist at the time."
The judgment does not mean the officials have lost their jobs but the lawyers in the case noted that it allows the public to petition courts in future to have the executives removed.
The nominees included Dr Nicholas Kut Ochogo (Agriculture Food and Fisheries), Mr Joseph Odhiambo Ogutu (Finance and Economic planning), Dr Elizabeth Achieng Odhiambo (Enterprise, energy and planning), Mr Adrian Ouma (Physical planning, land, housing and urban development) and George Rubiik Misore (Water, irrigation, environment and natural resources).
The others were Mrs Dorothy Akinyi Owino (Health and sanitation), Mrs Mary Apiyo Olute (Education, gender, youth and social services), Dismas Odhiambo Wakla (Public service and governance), Mr George Amenya Oyeho (Public works, roads, transport and energy) and Mr Jaoko Oburu Odinga (Tourism, culture and sports).
The assembly approved Mrs Olute only, on October 3, 2017, after the House adopted the vetting committee's recommendations.
The governor was not amused so he vowed to resubmit the names and later returned the names of six rejected nominees.
Section 10 of the public appointment Act says that where a candidate is rejected by the assembly, the governor shall not resubmit the name ‘unless circumstances relied on for the rejection did not exist at the time.
However, county representative Evans Oruenjo said that according to the County Government Act, circumstances changed so the governor was right in resubmitting the names.
He said the nominees had been switched.
The judge faulted the petitioners for not stating this.
“According to the court, he switched some nominees to different dockets and altered titles of some dockets. Regrettably, the petitioners did not amend the petition to plead those facts,” said Justice Kimondo.
The court also found that the petitioners did not provide demographic evidence to show that most Siaya residents are Luos and that three nominees were the governor’s relatives.
“It is true that the nominees hailed from Alego Usonga sub county, but from the materials before us, all the three were from different wards. No cogent evidence showed the three were relatives or kin to the governor,” said the judge.