Reprieve for 3 Kisumu County Assembly MCAs as Court overturns Speaker’s decision on their suspension.

 The Kisumu County Assembly.High Court in Kisumu has overturned a decision by its Speaker Onyango Oloo where he suspended three members of the county Assembly on April 10 this year-File Photo.

By Dickson Odhiambo

 May 24, 2018.

Reprieve for 3 Kisumu County Assembly MCAs as Court overturns Speaker’s decision on their suspension.

A HIGH Court in Kisumu has overturned a decision by the Kisumu County Assembly Speaker Onyango Oloo where he suspended three members of the county Assembly on April 10 this year.

High Court Judge Justice Fred Ochieng in his ruling on Tuesday this week said that the Speaker did not follow the due procedure while suspending the three MCAs when he invoked the Kisumu County Assembly Standing Order number 107 on gross disorderly misconduct.

Justice Ochieng said the Speaker of Kisumu County Assembly had the power, in his understanding to order a member who was guilty of gross disorderly conduct to withdraw immediately but it appears he did not exercise that authority.

“If he had done so, his action could be comparable to the action taken by a court of law, when a judge or magistrate invokes his or her authority to punish a person who had committed a contempt of court, in the face of the court,” said justice Ochieng in his ruling.

He added that but even for a court of law, punishment of contempt of court can only be meted out immediately, if the contempt was in the face of the court. In any other instance, the court would have to go through a process akin to a full trial.

“When the Speaker did not order the members to withdraw immediately, he became obliged to take each of them through a process in which they would be accorded a hearing. Had the Speaker taken account his own words, he ought not to have suspended Joseph Opiyo Olale for 14 days. He could only have suspended him for a maximum of three sittings,” said part of the ruling.

The court said that in respect to all the three applicants, justice could only have been deemed to have been done if each of them were given a chance to “mitigate” before the punishment was handed over to them.

“This court is unable to ascertain whether or not the Speaker was right when he said that both Jactone Ogendo and Joachim Omieno Oketch had misbehaved for a second time during the same session. In the absence of a Hansard Report, the court is unable to ascertain whether or not the Speaker had violated the principles of proportionality, “the judge added in his ruling.

The court further said that in the matters of Judicial Review, the court does not delve into merits of the decision, adding that although it is possible that the punishment meted out could be excessive,  it is not the basis for this decision.

“In conclusion, the decision of the Speaker, in finding the applicants guilty of gross misconduct is removed to the court, and is hereby quashed,” the Judge said.

The court has ordered each party in the matter to pay its own costs.

“I so order because although the decision of the Speaker has been overturned, the applicants appear to have misconducted themselves,” the Judge added.

The three applicants in the case are Joachim Oketch Omieno aka Swagga of Kondele Ward, Jactone Ojwang Ogendo of Nyalenda A ward and his Nyalenda B counterpart Joseph Opiyo Olale.

They moved to Court through Lawyer Ken Amondi and Company Advocates asking the court to grant an order of Certiorari, with a view of quashing the decision of the Speaker of the County Assembly of Kisumu where he suspended them for an alleged gross disorderly misconduct on April 10 this year.

Their Lawyer Ken Amondi while addressing the press after the ruling termed it a good decision by the court.

“We have a view that this is a good decision by the court and this is sending a message to public bodies that even as they exercise their constitutional mandates, they must follow the constitutional principles in terms of the rule of law which envisages the right to be heard,” Lawyer Amondi said.

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