By Habil Onyango
The judgment in a case which stopped the swearing-in of the appointed Homa Bay Deputy Governor Danish Onyango alongside two other Executive Committee Members is set for Thursday, July 30, 2026, at the Kisumu Employment and Labour Court.
This is after the Interface Community Help Desk, a local community-based organisation, filed a case in the Employment and Labour Relations Court of Kenya in Kisumu, which halted the swearing-in of the appointees. Currently, they serve in an acting capacity.
The petition was filed before Judge Nzioki wa Makau by Michael Kojo Otieno and Evance Otieno Oloo Gor as the first and second petitioners, respectively, against the Homa Bay County Governor, the County Assembly of Homa Bay, the Clerk of the County Assembly, and the County Attorney as the first through fourth respondents.
In February 2026, former Homa Bay Deputy Governor Joseph Oyugi Magwanga resigned, a matter which paved the way for the appointment of Onyango.
On March 24, 2026, County Governor Gladys Wanga appointed the acting DG as the new Deputy Governor, along with other positions in a minor reshuffle. Isaac Victor Ongiri was appointed to serve as the Executive Committee Member for Governance, Administration, Communication, and Devolution, while Elijah Dede took on the Trade, Industry, Tourism, Marketing, and Cooperative Development docket.
Professor Elijah Munga and nine others were listed as interested parties.
The petitioners claimed that the county assembly and governor failed to implement the constitutional principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender, in violation of Articles 27(8) and 179(3)(b) of the Constitution of Kenya 2010.
They also raised issues regarding violations of the Fair Administrative Actions Act, 2015, the Public Appointments (County Assembly Approval) Act, and the County Governments Act.
According to court documents, the petitioners initiated the matter with a petition dated March 25, 2026, challenging the nomination and appointment process of the Homa Bay County Executive Committee Members. Their grievance was that the list of nominees published in the Daily Nation and The Standard newspapers on March 20, 2026, violated Article 27(8) of the Constitution by failing to comply with the two-thirds gender rule.
They concurrently filed an application under certificate of urgency, seeking to halt the vetting process pending the hearing and determination of both the application and the petition.
“Upon ex-parte consideration of the application in chambers on March 30, 2026, this Court issued orders staying the vetting and approval of the nominees advertised in the notice dated March 20, 2026, pending the inter partes hearing of the application,” noted the judge.
“The issuance of this order prompted the filing of the application presently before the Court on March 30, 2026, by the first and fifth respondents,” he added.
The application rests on grounds outlined in its face and is supported by affidavits from Mr Benard Muok, Mr Elijah Obiny, Mr Danish Onyango, and Mr Isaac Victor Ongiri.
According to the documents, the applicants contended that the ex-parte orders were obtained through material non-disclosure, misrepresentation of facts, and erroneous application of the law. They argued that the petitioners failed to disclose that the nomination process for the Deputy Governor had significantly progressed and that the nominee had already been cleared by the IEBC, meaning any challenge should have been brought only through an election petition.
Additionally, they asserted that the petitioners did not mention that the vetting of the other nominees had already been conducted before the County Assembly without objections.
The applicants maintained that the approval process was governed by strict statutory timelines under Section 9(1) of the Public Appointments (County Assemblies Approval) Act, 2017, and argued that the petitioners should have lodged objections under Section 7(10) of the same Act before approaching the court.
The applicants urged the court to vacate the ex-parte orders, as their continued existence disrupts a time-bound constitutional process, creates administrative uncertainty, and endangers service delivery within Homa Bay.
Furthermore, they contended that the application had since been overtaken by events. In response, the petitioners filed a replying affidavit sworn on May 11, 2026, by the first petitioner. They argued that the interim orders were properly issued since, at the time the application was filed, the vetting and approval process had not yet concluded.
The petitioners argue that the vetting and approval report was neither presented to the County Assembly nor debated and adopted, leaving the process incomplete. They assert that the orders issued were necessary because the 2nd and 3rd respondents acted in violation of sections 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act.
They contend that the Court properly exercised its discretion after considering the arguments presented, the remedies sought, and the applicable legal principles, asserting that there is no valid reason to overturn the orders. The petitioners urge the Court to uphold the orders in the interest of justice.
According to the judge, “Oral submissions were made on behalf of the 1st and 5th Respondents, while the Petitioners submitted written arguments.”
The 1st and 5th Respondents claim that the Petitioners failed to disclose that the nomination and vetting process had been completed. They maintain that the nomination process began on March 15, 2026, that the candidates were approved by the Political Parties Tribunal, and that they were subsequently gazetted on March 23 and March 25, 2026. They assert that the nominees were vetted by the County Assembly on March 25, 2026, thereby concluding the vetting and nomination process.
The judge noted, “With the aforementioned process already concluded, they argue that only the submission of the County Assembly report remains outstanding.”
Conversely, the petitioners argue that during the recommendation for the appointment of the County Executive Committee Members and the Deputy Governor, Homa Bay County did not meet the mandatory requirements and thresholds established by the Constitution, prompting the issuance of ex-parte orders.
The 1st and 5th Respondents seek orders to set aside, vacate, or vary the previous orders, along with costs associated with the application.
The Judge recognised that serious constitutional issues were raised regarding Article 27 of the Constitution of Kenya and decided to maintain the orders to allow for the thorough examination of these issues.
Judge Makau, in an order dated May 25, 2026, in Kisumu, confirmed the orders issued on March 30, 2026, which will remain in effect until the hearing and determination of the Petition. He dismissed the application from the Respondents and indicated that costs would follow the event, noting that further directions regarding the resolution of the Petition will follow the ruling.
