Okiya Omtatah Okoiti v Selection Panel for the National Land Commission & 3 others; Gershom Otachi Bw’omanwa & 10 others (Interested Party) [2019] KEELRC 337 (KLR)
The bottom line
#Kenya's employment court quashed two National Land Commission appointments because the candidates were interviewed for Chairperson but appointed as Members instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the Selection Panel was incompetent for want of the two NGO Council nominees under paragraph 1(d) of the First Schedule to the NLC Act
The panel was improperly constituted, but the omission was explained by the NGO Council's inability to nominate due to internal litigation and factional leadership; the burden lay with the NGO Council and the Office of the President could not be faulted
The Head of Public Service invited the NGO Council to nominate two members in October 2018; the NGO Co-ordination Board responded that the Council was fractured by litigation and unable to nominate. There was no indication the Council later notified the President that it had resolved its problems and sought inclusion. The court found the panel improperly constituted but held the Office of the President could not be faulted.
Whether the improperly constituted panel's recruitment and appointment process was a nullity
No - sections 53 and 55 of the Interpretation and General Provisions Act preserve the validity of the panel's actions notwithstanding the vacancy
Section 53 provides that the powers of a board or committee are not affected by a vacancy in membership or a defect in appointment unless a contrary intention appears. Section 55 permits a majority to act where an act may be done by more than two persons. The panel therefore validly discharged its mandate despite the missing NGO Council nominees.
Whether failure to publish interview results and names of successful candidates was fatal
Not fatal - paragraph 4 of the First Schedule requires publication of shortlisted and qualified applicants, not interview results or the names of successful candidates forwarded to the President
Paragraph 4 of the First Schedule obliges the panel to publish names of shortlisted and qualified applicants and to conduct interviews in public, but imposes no duty to publish interview scores or the names forwarded to the President. The omissions therefore could not vitiate the process.
Whether the nomination of the 8th and 9th interested parties as Members was unconstitutional
Yes - they were shortlisted and interviewed only for Chairperson, never for Member, and could not be appointed to a position for which they were never shortlisted; this violated Article 232 values of fair competition and merit
The record showed both the 8th and 9th interested parties applied for and were shortlisted only for the position of Chairperson, not Member. The court held that a recruitment process runs from advertisement to shortlisting, interview and selection, and that appointment to a position for which a candidate was never shortlisted is an abuse of process that prejudices other candidates who were shortlisted and interviewed for Member. This flouted Article 232's values of fair competition and merit.
Whether Parliament's vetting of the 8th and 9th interested parties exceeded its powers
Yes - it was an improper exercise of parliamentary power for the Lands Committee to allow nominees to regularise their qualification documents (e.g. the 9th interested party's tax compliance) during vetting instead of assessing suitability as presented
Relying on the separation of powers doctrine as qualified in CORD v Republic and the Wambora case, the court held that while courts may examine the constitutionality of legislative acts, Parliament's vetting mandate is confined to assessing the suitability of nominees as presented. Allowing the 9th interested party to obtain a tax compliance certificate during vetting was an excess of mandate, and she should not have been vetted as suitable.
Legal principles established
#- A vacancy or defect in the membership of a statutory body does not invalidate its actions by virtue of section 53 of the Interpretation and General Provisions Act
- A candidate cannot be appointed to a position for which they were never shortlisted, as shortlisting and interview positions must align with appointment
- Parliament acts in excess of its mandate when it regularises a nominee's qualification deficiencies during vetting rather than assessing suitability as presented
- The doctrine of separation of powers does not prevent the court from exercising its jurisdiction to examine the constitutionality of acts of the Legislature or the Executive
Court orders
#- 1.A declaration that the selection panel as constituted was incompetent, but that this did not affect the outcome of the entire recruitment and appointment process.
- 2.An order quashing the nomination of the 8th and 9th interested parties, Esther Murugi Mathenge and Tiyah Galgalo, as Members of the National Land Commission.
- 3.A declaration that the vetting process by Parliament of the 8th and 9th Interested Parties was done in excess of parliamentary powers.
- 4.No order as to costs.
- Jurisdiction invoked
- Articles 22, 23, 258 and 165(3)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Selection Panel for the National Land Commission & 3 others; Gershom Otachi Bw’omanwa & 10 others (Interested Party) [2019] KEELRC 337 (KLR)", Case Analysis (2019). Petition 162 of 2019 (Consolidated with Petition No. 176 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/337/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.