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Lawyers representing Kakamega County Public Service Board say executive is sacrificing them to settle political scores

Kakamega

By Iptisam Abdallah

There was drama at the County Assembly of Kakamega during the hearing of two petitions seeking for the removal of members of Kakamega County Public Service Board (CPSB).

In a heated session, lawyers representing the respondents (County Public Service Board) members led by Evans Mireri, Calistus Shifwoka, Wanjala Mukonyi and Ken Echesa, they accused the County Assembly on Public Service and Administration Committee of being used by the executive to send home the board.

Kakamega County Assembly Public Service and Administration Committee Chairman Willis Opuka – Photo/County Assembly

The two petitions were filed by Edwin Shivakale and Alex Wanjala.

This is after the committee Chairman Willis Opuka in his communication ruled that the board members to vacate from the office until the matter is heard and determined.

The board members to be removed from office are Catherine Omweno (Chairman), Ambrose Subayi (Vice Chairman), Dr Ralph Wangatiah, Stanley Were, Joel Omukoko and Sylvia Otunga.

“The board members have been accused of serious violation of the constitution, corruption and gross misconduct. We order that they get out of office to pave way for a fair exercise,” said Mr Opuka

Petition One by Edwin Shivakale

But the legal team argued that the county assembly was usurping powers that don’t belong to them.

“What you mentioned interferes with the work of the board which is a semi-autonomous entity. For a fair process, they need to continue being in office,” said Mr Shifwoka, a lawyer of the board

The board MEMBERS to be removed from office are Catherine Omweno (Chairman), Ambrose Subayi (Vice Chairman), Dr Ralph Wangatiah, Stanley Were, Joel Omukoko and Sylvia Otunga.

He added: “Which powers are you using to order the board to take leave from office, is it oversight or delegated powers. Under which specific law is the committee using to send the board home,”

Shifwoka also protested that his clients had been denied access to relevant documents to enable them mount a defense by the County Public Service Board secretary Catherine Gathoni under the instructions of the county assembly.

Petition One by Edwin Shivakale

Ms Gathoni in the petition despite being a member of the board, she is facing no accusations.

According to Ken Echesa, also a lawyer of the respondents, the county assembly was hearing the petition as a quasi-judicial committee and that they were bound to stick to the dictates of the law.

“Notwithstanding any other law in computation of time, the 14 days we gave are enough. Out standing orders stipulates calendar days and this does not include weekend and holidays,” ruled Mr Walunya

Echesa also accused the assembly committee of denying the respondents time to prepare for a serious defense.

“This session should be suspended until we get time and relevant documents needed to defend the accused persons,”

Petition One by Edwin Shivakale

With the bitter exchange between the lawyers and the assembly committee, Mr Opuka suspended the session to enable them make a ruling on issues raised.

After a 30 minutes break, the committee Vice Chairman Peter Walunya read the ruling and denied them extension of time.

“Notwithstanding any other law in computation of time, the 14 days we gave are enough. Out standing orders stipulates calendar days and this does not include weekend and holidays,” ruled Mr Walunya

On being denied documents, we don’t have any evidence showing you requested for the documents and you were denied. “We have decided in the absence of any material, we can’t say much ado,”

Petition One by Edwin Shivakale

On sending the board on compulsory leave, the committee retreated from there earlier stance and allowed then to continue being in office.
“We don’t have a specific law we can site in sending the board home. The issue is hereby dropped,” said Walunya

But Evans Mireri, the lead counsel of the respondents told the assembly committee that the hearing will continue but under protest.

“When you are constituted as a quasi-judicial committee, you are bound by judicial practice, you can’t run away from the set practice.  Based on your judgment, we are proceeding under protest as it’s our considered opinion that justice has not been served,” said Mireri

Petition One by Edwin Shivakale

Ken Echesa said : “You said in your communication that the hearing was a quasi-process which envisages  an adversarial system but the committee has resorted to use inquisitorial system where you only chose what to say. We shall respectfully submit to proceed under protest,”

The first petitioner, Edwin Shivakale tool to the witness stand and the moment he opened his mouth, it opened another can of worms.

Petition Two by Alex Wanjala

“My petition is about integrity which the service board have fallen short of the constitution and the legal dictates. The only fair thing that can happen is for them to be removed from office and a competent board recruited,” said Mr Shivakale

He added : “That the conduct of the service board was jointly or severally negligent, reckless, selfish, illegal and devoid of national values of social justice, accountability and in accordance with Chapter Six of the constitution on leadership and integrity,” said Shivakale

He produced an internal audit report between July 2020 and June 2021which he said has his evidence but the respondents didn’t have the report. Interestingly, the county assembly committee also had the report.

Petition Two by Alex Wanjala

Mr Shifwoka, the respondent’s lawyer rebutted the argument saying an alien document which they didn’t have has been introduced in the petition hearing process.

“The audit report he is referring to we don’t have. We don’t know when it was published as well as its contents.  No one has served us with the report. We don’t have advanced reasons as to why we were not supplied with it and if allowed, it will be illegal,” said Shifwoka

He added: “You can’t hide under a document we don’t have. It’s irregular, suspicious and unethical. We object any reliant to any of them that was never provided to the respondent,”

However, Mr Shivakale objected saying the lawyer was confusing the committee with a lot of English and demanded that the committee adopts his petition in entirety.

In a rebuttal, Shifwoka said: “I think the petitioner out of excitement lost the gist of my submission. Why is the petitioner playing a hard ball, is he working in chorus with the committee?

Petition Two by Alex Wanjala

He also demanded that the committee to supply them with a report from the OCS, Kakamega Central Police station over alleged arrest of the board official receiving a bribe and the information supplied to them by the public service board secretary in secret.

Mr Mireri said: “What’s happening here defies all norms that an accused person walks into a tribunal and gets an ambushed trial. The respondents are clean until proven guilty. You can’t make a decision on a trial ambush,”

The Committee Chairman, Mr Opuka suspended the session for an hour to make a ruling on the issues raised.

The committee Vice Chair, Mr Walunya in the committee ruling said that they have decided to stop the petitioner from adducing any evidence until the respondents are served. The proceedings were adjourned to next Monday.

Petition Two by Alex Wanjala

In the second petition by Alex Wanjala, the shouting matched continued.

The respondents legal team wondered how a petition was received on March 22, committed to the house for discussion and the same day communicated to the county service board.

They also demanded for a Hansard report of March 22, which was not provided. The respondents als didn’t have documents with regards to petition two.

With the sustained pressure, the committee proposed for an adjournment of the session but the lawyers refused.

“Since the CEO and Secretary of the board, the county executive and the county assembly are in communication and we don’t know the information they are exchanging with each other, we request that we be furnished with the same,” said Mr Echesa

On adjourning the session, Echesa reminded the committee had not taken the witness stand and therefore they should not assume his roles.

“The committee seems to be mourning more than the bereaved. Why jump the gun yet the petitioner has not said anything, the committee seems to know the documents we don’t have. Stop taking the role of the petitioner,” said Echesa

Mr Opuka, the committee Chairman defended himself saying the committee was not served with the documents as the petitioner took them to the clerk of the assembly. Hearing of the second petition resumes on Wednesday next week.
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