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ELRCDismissedPetition No. 114 of 2020

Emmanuel Wanjala Wamalwa v Robert Pavel Oimeke & 5 others [2020] KEELRC 419 (KLR)

Employment and Labour Relations Court
6 October 2020
7,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a petition challenging EPRA Director-General Robert Pavel Oimeke's reappointment, ruling he was qualified and no misconduct was proven.

What this practically means

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Executive summary

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The Petitioner, a consumer of energy products, petitioned the Employment and Labour Relations Court challenging the reappointment of Robert Pavel Oimeke as Director General of the Energy and Petroleum Regulatory Authority (EPRA). He sought declarations restraining the 2nd to 5th Respondents from renewing or extending the 1st Respondent's contract, an order compelling the Ethics and Anti-Corruption Commission to investigate him, general damages and costs. He alleged that the 1st Respondent lacked the qualifications under Section 13(3)(e) of the Energy Act, 2019, and had infringed Articles 10, 73, 75(1) and 232 of the Constitution through abuse of office, mismanagement, corruption, tribalism and favouritism. The Respondents countered that the 1st Respondent held a relevant degree, was a registered Graduate Engineer with the Engineers Board of Kenya in good standing, and a member of other professional bodies; that his reappointment had been lawfully considered and completed before the Petition was filed on 22/7/2020; that the Petitioner's annexures were uncertified and of undisclosed source and thus inadmissible; and that the EACC could not be compelled to investigate absent any complaint. The court framed four issues and found that the 1st Respondent was qualified, that no disqualifying acts or omissions were established, and that the reappointment had been concluded before the Petition was filed, rendering the primary relief moot. Applying Njonjo Mue and the Omtata line of authority on illegally obtained evidence, the court excluded the Petitioner's documents. The interim injunction of 28/7/2020 was lifted, the Petition dismissed in its entirety, the 1st Respondent's status quo as Director General reinstated, and there was no order of costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent has qualifications to be the 2nd Respondent's Chief Executive Officer.
  2. 2.Whether there are actions or omissions committed by the 1st Respondent that disqualify him from being the 2nd Respondent's Chief Executive Officer.
  3. 3.What is the status of the 1st Respondent to the 2nd Respondent?
  4. 4.What remedies to grant in the circumstances.

Key legal issues

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01

Whether the 1st Respondent meets the qualifications under Section 13(3) of the Energy Act, 2019, in particular membership of a relevant professional association in good standing

Holding

The 1st Respondent is qualified; he holds a relevant degree, is a registered Graduate Engineer with the Engineers Board of Kenya in good standing, and is a member of other professional bodies.

Reasoning

Section 13(3) of the Energy Act sets out the qualifications for appointment as Director-General, including being a member in good standing of a relevant professional association. The 1st Respondent exhibited his degree certificate, registration as a Graduate Engineer with the Engineers Board of Kenya (No. B8389) with a certificate of good standing, membership of the Association of Energy Professionals Eastern Africa and the Institute of Directors (Kenya). The court accepted this documentary proof as displacing the Petitioner's assertion.

p. 7
02

Whether the 1st Respondent committed acts or omissions disqualifying him from office (abuse of office, corruption, tribalism, favouritism)

Holding

No disqualifying acts or omissions were established; the Petitioner's evidence was uncertified, of undisclosed source, and failed to prove the allegations.

Reasoning

The Petitioner relied on documents, including a letter seeking withdrawal of charges against an LPG dealer, whose source was not disclosed and which were not certified. Applying the Court of Appeal's ruling in the Omtata case and the Supreme Court's decision in Njonjo Mue, the court held irregularly obtained evidence inadmissible where its admission would be detrimental to the administration of justice. The allegations of nepotism, tribalism and misappropriation were likewise not proved, and the EACC confirmed no complaint had been lodged with it.

p. 9
03

Whether the Petition was overtaken by events given the 1st Respondent's prior reappointment

Holding

The reappointment had been considered, concluded and accepted before the Petition was filed, so the orders sought could not be sustained.

Reasoning

The 1st Respondent applied for reappointment in January 2020; the Board considered and approved it in March 2020; the Cabinet Secretary approved on 7/5/2020; and he accepted in writing on 11/5/2020. Since the Petition was filed on 22/7/2020, the relief seeking to restrain deliberation and renewal was moot. The interim injunction granted earlier could not stand and was lifted.

p. 9

Legal principles established

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  • Evidence obtained in a manner violating rights in the Bill of Rights may be excluded under Article 50(4) if its admission would be detrimental to the administration of justice, whether in civil or criminal proceedings.

Court orders

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  1. 1.The order granted on 28/7/2020 injuncting the Respondents from considering, reappointing and renewing the contract of the 1st Respondent is lifted
  2. 2.The Petition is dismissed in its entirety
  3. 3.The status quo of the 1st Respondent reinstated immediately as Director General of the 2nd Respondent
  4. 4.No order of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 165 and 258 of the Constitution of Kenya

Relief refused

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Declaration restraining the 2nd to 5th Respondents from renewing/extending the 1st Respondent's contract as Director General of EPRA

The reappointment had already been completed before the Petition was filed, so the prayer was overtaken by events

p. 9

Order compelling the 6th Respondent (EACC) to commence investigations against the 1st Respondent

No complaint had been lodged with the EACC, which is an independent commission that cannot be compelled to investigate absent a complaint

p. 10

General damages

The Petition failed on its merits; damages cannot issue where no violation was established

p. 10

Costs

There will be no order of costs.

Quotable passages

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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 assertion by the Applicant that the 1st Respondent is not a member of a professional body in good standing therefore holds no truth.
p. 7Qualification for appointment as Director-General of EPRA
It is therefore my finding that it has not been established that there are acts or omissions committed by the 1 st Respondent that disqualify him from being the 2nd Respondent's Director General.
p. 9Failure to prove disqualifying misconduct
if a court determines that admission of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights would be detrimental to the administration of justice, the court may reject it irrespective of whether it is in connection with a civil or criminal trial.
p. 8Admissibility of illegally obtained evidence under Article 50(4)
I therefore lift the order granted on 28/7/202 injuncting the Respondents from considering and reappointing and renewing the contract of the 1st Respondent.
p. 9Final orders - lifting of interim injunction
It is therefore my finding that this Petition is found to be without merit. I therefore dismiss it in its entirety and order the status quo of the 1st Respondent reinstated immediately as Director General of 2 nd Respondent.
p. 10Final orders - dismissal of Petition

Issues in the judgment

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minor

The judgment inconsistently refers to the Petitioner as 'Applicant' in the analysis of issues, and to the Board's renewal as both 25/3/2020 and approval on 7/5/2020; there is also a typographical error in the date of the injunction order ('28/7/202')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emmanuel Wanjala Wamalwa v Robert Pavel Oimeke & 5 others [2020] KEELRC 419 (KLR)", Case Analysis (2020). Petition No. 114 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/419/eng@2020-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.