Okiya Omtatah Okoiti & another v Cabinet Secretary for Information, Comminications and Technology & 2 others ;Mahmoud Mohamed Noor (1st Interested Party ) & 9 others [2019] KEELRC 283 (KLR)
The bottom line
#Kenya's Employment Court quashed four Communications Authority board appointments made without open, competitive, merit-based recruitment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to determine the petitions
- 2.Whether the appointment of the 4 board members by Gazette Notice No. 6657 dated 18.07.2019 was lawful and constitutional
- 3.Whether the appointment of an acting Director General after the lapsing of the term of the former Director General on 21.08.2019 was lawful
- 4.Whether the Public Service Commission Act, 2017 is the only legislation contemplated under Article 234(2)(a) of the Constitution
- 5.Whether the application for contempt should be allowed
Key legal issues
#Jurisdiction over appointments to boards of state corporations
The Court has jurisdiction; board members of state corporations are public officers and the disputes are employment disputes in the public service
The respondents argued the petitions were res judicata or sub judice given Petition No. 163 of 2019 and that board members were not employees. The Court held the jurisdictional issues were already determined in its ruling of 16.08.2019, that the cause of action here was new and distinct, and reiterated its established position that board members of state corporations are public officers whose appointment, recruitment and termination fall within public service employment. The master-servant test does not obtain in public service.
Lawfulness of the Gazette Notice No. 6657 appointments to the CAK Board
The appointments were unconstitutional for non-compliance with transparent, competitive and merit-based recruitment procedures under Articles 10, 27, 73 and 232 and the Public Service Commission Act, 2017
Section 6(1)(e) KICA replaced the detailed selection-panel procedure in former section 6B. The Court held that normal appointments under such a provision must comply with the PSC Act, 2017 criteria for advertisement, open interviews, vetting and objective selection. Even if the appointees were qualified and diverse, identification had to follow constitutional and statutory transparent procedures affording equal opportunity to all groups. The appointments were therefore unconstitutional and the Gazette Notice was quashed.
Lawfulness of the acting Director General appointment
No valid acting appointment was established; only the Board could appoint an acting Director General and no proper Board existed at the material time
The Board's term had lapsed and the Court's orders of 16.08.2019 suspended the Gazette Notice appointments, so no proper Board existed on 21.08.2019 when the DG's term ended. The State Corporations Advisory Committee's advisory under section 27(2)(c) binds only if lawful, and no letter of acting appointment was exhibited. The Board resolution sanctioning the recruitment advertisement was also not exhibited. The doctrine of necessity was misconceived given clear statutory remedial routes including section 7(3) of the State Corporations Act.
Whether the Public Service Commission Act, 2017 is the only legislation under Article 234(2)(a)
No - Article 234(2)(a) refers to legislation generally and Parliament may legislate thereunder without being limited by the Commission's delegation power under Article 234(5)
Section 260 of the Constitution defines legislation broadly to include Acts of Parliament and county assembly legislation. Parliament may legislate under Article 234(2)(a) provided the legislation is consistent with the Constitution. The petitioner's attempt to restrict the provision to the PSC Act, 2017 was misconceived.
Contempt application
The contempt application failed as no contempt was established
Wangusi's term lapsed automatically by effluxion of the contractual term and no order stopped that or required his recall. The status quo order of 13.08.2019 was clarified on 27.08.2019 to apply to stay of the recruitment of the new Director General, and recruitment did not proceed. No evidence showed disobedience of the orders of 16.08.2019. The application against the cited persons had no established justification.
Legal principles established
#- Board members of state corporations are public officers and disputes about their appointment are within the ELRC's jurisdiction as public service employment disputes
- Appointments to public office under general statutory powers must comply with Articles 10, 73, 232 and the Public Service Commission Act, 2017 criteria for advertisement and competitive recruitment
- Only the Board of CAK has statutory power to appoint an acting Director General; the State Corporations Advisory Committee's role is advisory and any advisory applies only if lawful
- Crisis creation or schemes of avoidance cannot justify unlawful administrative action under the doctrine of necessity
Court orders
#- 1.Declaration that Articles 10, 27, 73 and 232(1)(g) of the Constitution require appointments to public office to be transparent, competitive, merit-based, inclusive and subjected to public participation including open interviews
- 2.Declaration that Articles 1, 2, 3(1), 10, 129 and 153(4)(a) of the Constitution bind the Cabinet Secretary to exercise his powers under section 6(1)(e) of the KICA strictly in accordance with the Constitution and relevant statutory provisions
- 3.Declaration that section 6(1)(e) of the KICA does not empower the Cabinet Secretary to handpick and appoint persons to the CAK Board without a fair, open, competitive, merit-based and inclusive recruitment process and without involving the Public Service Commission
- 4.Declaration that the Cabinet Secretary's appointment of the 1st to 4th interested parties in petition 138 of 2019 was constitutionally invalid and null and void ab initio
- 5.Declaration that the Public Service Commission Act, 2017 is not the only legislation anticipated under Article 234(2)(a) of the Constitution
- 6.Quashing of Gazette Notice No. 6657 of 18.07.2019 published on 19.07.2019
- 7.Nullification of any purported recruitment of the successor to Francis Wamukota Wangusi as Director General of CAK as single-handedly conducted by the Chairman of the Board
- 8.Order that the respondents ensure seamless transition in leadership in public agencies as envisaged in the Constitution under the rule of law and safeguarding public interest
- 9.Respondents to pay 50% of the petitioners' costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over public service employment disputes - board members of state corporations held to be public officers within Article 73, 80(c) and 232 of the Constitution
- Consolidated with
- Petition No. 155 of 2019
Relief refused
#Recall of Francis Wamukota Wangusi to office under the doctrine of necessity
His contract lapsed by effluxion of time on 21.08.2019; no established basis for recall except for proper handover to a properly constituted Board
Contempt application by the petitioner in petition 138 of 2019 against Ngene B. Gituku, Mercy Wanjau and J.K. Kandie
The alleged contempt was not established; the contractual term lapsed automatically and there was no evidence the orders of 16.08.2019 were disobeyed
Costs
The respondents will pay 50% of the petitioners' costs of the proceedings
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The declaration that the 1st respondent's appointment (in petition 138 of 2019) of the 1st, 2nd, 3rd, and 4th interested parties was constitutionally invalid and therefore is null and void ab initio.
The order hereby issued by the Honourable Court quashing Gazette Notice No. 6657 of 18.07.2019 published in Nairobi on 19.07.2019 in the Special Issue of the Kenya Gazette Vol. CXXI – No. 91.
That any purported recruitment of the successor of the Francis Wamukota Wangusi as Director General of the Communications Authority of Kenya as single-handedly conducted by the Chairman of the Board of the Authority is unconstitutional and unlawful as is hereby nullified.
The Court has held that public officers are servants of the people and are engaged or employed within a framework of constitutional and statutory provisions as well as lawful policies and practices.
creation of a crisis through schemes of avoidance, muddling or undermining well designed legal regimes should not be permitted to justify unlawful administrative and other decisions (on account of necessity) to defeat the clear provisions of law about the correct action or omission.
The respondents to ensure that seamless transition in leadership in public agencies be a norm rather than an exception and that the same should form what is envisaged in the Constitution under the rule of law and safeguarding public interest.
Issues in the judgment
#The conclusion lists the orders with lettering out of sequence (e, f, h, i, g) and omits a letter 'g' item corresponding to prayers h), and the numbering 'g)' for costs appears after 'i)', suggesting an editing/drafting error in the final orders
Typographical errors in the judgment, e.g. 'the Board of CAK was lacked quorum' and 'the Parliament my by legislation'
Prayer (b) of the petition quoted section 6(1)(c) of KICA while the declaration granted and the Gazette Notice referenced section 6(1)(e); the judgment appears to treat 6(1)(e) as the operative provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti & another v Cabinet Secretary for Information, Comminications and Technology & 2 others ;Mahmoud Mohamed Noor (1st Interested Party ) & 9 others [2019] KEELRC 283 (KLR)", Case Analysis (2019). Petition No. 138 of 2019 (consolidated with Petition No. 155 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/283/eng@2019-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.