By BOB WASWANI
MARCH 20, 2026| BUNGOMA, Kenya – A Busia resident has successfully fought off attempts by the county assembly leadership to shut down his legal challenge against the appointment of an acting clerk, after the Employment and Labour Relations Court ruled that citizens have the right to question alleged violations of the law in public offices.
In a ruling delivered virtually from Kakamega on March 19, 2026, Justice David Nderitu dismissed preliminary objections filed by the Busia County Assembly Service Board, the Speaker, and Gabriel Erambo (pictured), who currently serves as Acting Clerk. The respondents had sought to terminate the petition filed by Fredrick Ekasiba Atyang on technical grounds, arguing that the court lacked jurisdiction and that the petitioner had no legal standing to bring the case.
The ruling now clears the way for a full hearing of allegations that Erambo’s appointment violated Section 21 of the County Assemblies Service Act and the Constitution.
The dispute traces back to August 2024, when the substantive Clerk of the Busia County Assembly, Allan Wafula Mabuka, suffered an inability to serve. Instead of the Deputy Clerk, Carolyne Imukutet Apan, assuming the role as prescribed by law, the Speaker issued a gazette notice appointing Erambo as Acting Clerk for six months. The petitioner contends that Erambo has continued in the position beyond that period and now seeks orders to have the appointment quashed and to compel Erambo to refund all allowances earned while serving illegally.
The respondents mounted two preliminary objections aimed at killing the case before it could be heard. Through their respective lawyers, they argued that the Employment and Labour Relations Court lacked jurisdiction to determine the matter, claiming that such constitutional questions belonged to the High Court. They further contended that Atyang, being a mere resident and voter with no employment relationship with the county assembly, had no locus standi to file the petition, dismissing him as a “busy body.”
Justice Nderitu rejected both arguments in a firm ruling.
On the question of jurisdiction, the judge held that the petition deals with the appointment and deployment of an employee of the County Assembly, which falls squarely within the mandate of the Employment and Labour Relations Court. He cited the Supreme Court’s decision in Kenya Tea Growers Association case (2024), which affirmed that the court has jurisdiction to interpret the Constitution in matters related to employment and labour relations.
“The issues raised relate to appointment and deployment of employees and falls within the jurisdiction of this court,” the judge observed.
On the issue of locus standi, the judge dismissed claims that the petitioner was a meddler. He noted that Atyang is a resident and voter of Busia County who filed the petition under Articles 22 and 258 of the Constitution, which allow citizens to enforce constitutional rights in the public interest.
“The Petitioner cannot be described as a busy body,” Justice Nderitu stated. “There is an alleged blatant violation of the law by the Respondents and such actions have financial, administrative, and other consequences on the citizens and residents of Busia County.”
The judge went further, commending the petitioner for stepping forward where those directly affected had remained silent. “The Petitioner should actually be commended for coming forward to challenge what he considers to be a blatant violation of the law that the persons directly affected, for whatever reasons, have not found necessary to challenge.”
With the preliminary objections dismissed, the court will now proceed to hear the substantive petition, including an application seeking conservatory orders to bar Erambo from continuing to act as clerk. Costs for the preliminary objections were awarded in the cause.