***Justice Nzioki wa Makau /JUDICIARY***

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A judge has thrown out a petition by a former county ICT officer who sought to overturn his dismissal from the Independent Electoral and Boundaries Commission.

The Employment and Labour Relations Court in Kisumu ruled that Calisto Oyugi Omuomo's petition lacked precision as he held two public posts concurrently.

Omuomo was dismissed in January 2023 for holding another permanent and pensionable position at Maseno University.

He sought to have his termination declared unconstitutional, arguing the electoral agency was improperly constituted at the time of his removal.

However, Justice Nzioki wa Makau ruled that his undisclosed dual employment in the public service undermined his claim regardless of procedural flaws.

As such, Omuomo could not use alleged constitutional violations to legitimise an “illegal” employment arrangement.

Omuomo’s primary contention was that his disciplinary process was void because it was conducted by the Commission Disciplinary Committee rather than the Human Resource Management Advisory Committee.

He had been appointed as an IEBC county ICT officer in June 2017. In September 2021, he received a show-cause letter over alleged gross misconduct.

“He avers that the letter not only outlined contemplated disciplinary action for alleged gross misconduct, but also directed the stoppage of his salary and required him to respond to the charges within 14 days,” court documents show.

“He contends that no reasons were advanced for the stoppage of his salary, though he duly responded to the allegations within the prescribed timeline.”

During the disciplinary hearing, he was neither furnished with the investigation report nor afforded an opportunity to present his own evidence.

He was eventually dismissed following a plenary meeting on January 6, 2023, and a dismissal letter issued on January 19, 2023.

Omuomo argued that his rights were violated through a prolonged disciplinary process and the unlawful withholding of his salary for 16 months.

Further, he contended that the commission lacked a lawful quorum at the time of his dismissal, as four commissioners had been suspended and three others had exited office by mid-January 2023, leaving the IEBC unable to make binding decisions.

The respondent countered that the dismissal was not only lawful but necessary.

The commission revealed that Omuomo was concurrently employed on permanent and pensionable terms by Maseno University while also drawing a salary from the IEBC, contravening sections 8, 9 and 23 of the Conflict of Interest Act and Article 77(1) of the constitution.

The IEBC also said the salary stoppage was permitted under its Human Resource Manual and that the delay in hearing his appeal was caused by a lack of commission quorum, not bad faith.

In his ruling on Monday, Justice Makau noted that while the petitioner focused heavily on procedural technicalities and the commission's lack of quorum, the underlying illegality of his dual employment could not be ignored.

“The illegal position he held cannot be wished away…He was rightfully removed from the employ of the respondent as his illegal action of securing employ at Maseno University cannot be upheld by this court or indeed any other court,” the judge ruled.

The court dismissed the petition in its entirety, ordering Omuomo to bear the costs of the suit.