- They argued that Ottichilo illegally and unlawfully dismissed them as executives of Vihiga county pursuant to an impeachment process.
- They also want an order of prohibition restraining the governor from nominating or appointing any other persons to fill their positions as executives.
The four executives sacked by the Vihiga county have moved to court seeking reinstatement or damages for wrongful dismissal.
Kenneth Elvuna (Trade), Paul Mbuni (Lands), Amos Kutwa (Health) and Pamela Kimwele (Public Service) have filed a notice of appeal after the Employment and Labour Relations court sitting in Kisumu dismissed their application.
The application was seeking to reverse the decision by Governor Wilber Ottichilo to sack them despite existing court orders.
Justice Christine Baari on November 6 dismissed an application by the four on the grounds that the matter was sub judice since another related matter was still active in court.
“The applicants in this application have filed multiple suits in relation to the same subject matter and the same parties," Baari ruled.
"Their reinstatement, which is the order of interest herein, is the subject matter in petition Nos. EO05, EO06 AND EOO7 OF 2021 in the High Court.”
“For this reason the court returns that the application as filed offends the sub judice rule, is bad in law, frivolous and an abuse of the court process,” she ruled.
But the four said in their memorandum of appeal filed on November 11 that the judge erred in fact and law.
This is because it failed to appreciate that it is the employment court that has the exclusive jurisdiction to determine the question of their dismissal as members of the county executive.
Through GSLAW LLP Associates, they said that the cause of action in Kisumu ELRCIR 11 of 2021 was founded on the dismissal letters dated June 18, 2021, dismissing the four.
They argue that Vihiga High Court petition FOO6 of 2021 as consolidated with EO75 and EOO7 of 2021 which seeks to challenge the legality of the appellants' impeachment process does not apply to the two separate but related causes of action pending in the respective courts.
“The learned judge erred in fact and law by failing to take cognisance that the respondent never filed a response to the notice of motion application and the purported response filed by a third party is null and void,” they said.
They argued that Ottichilo illegally and unlawfully dismissed them as executives of Vihiga county pursuant to an impeachment process by the county assembly that had been stayed by a court of competent jurisdiction.
Justice Farah Amin had ordered on June 21 that any impeachment proceedings on the question of their validity and or fairness of procedure be stayed pending hearing of the petition.
The judge also ordered that any steps taken in pursuing an outcome in the impeachment proceedings was an improper charge on the public purse.
He said the officials involved therein shall "be personally liable for costs incurred."
The four were sacked on June 18 following impeachment by the county assembly.
They are seeking an order to quash the decision dismissing them from employment as county executives.
They also want an order of prohibition restraining the governor from nominating or appointing any other persons to fill their positions as executives.
The four also want an order compelling the governor to ensure that they are accorded all the benefits accruing to them as executives as per the applicable Salaries and Remuneration Commission's circulars.
(edited by Amol Awuor)