Republic v Isaack Kipyegon Koech & 4 others Ex Parte Kipkirui Koech [2020] KEELRC 573 (KLR)
The bottom line
#A Kericho court upheld an Assistant Chief's appointment, confirming that Kenyan authorities can lawfully recruit under delegated Public Service Commission authority.
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 advertisement of the position of Assistant Chief II, Chepkitwal Sub-location met the requirements of section 37(1) of the Public Service Commission Act
- 2.Whether the 3rd, 4th and 5th respondents had lawful delegated authority under Article 234(5) of the Constitution to conduct the recruitment and appointment
- 3.Whether the recruitment and appointment of the 1st respondent was irregular, unprocedural and in breach of natural justice and Article 47 of the Constitution
- 4.Whether the orders of certiorari, prohibition and mandamus sought should issue
Key legal issues
#Validity of the advertisement under section 37(1) of the Public Service Commission Act
The advertisement was valid; the authorised officer may advertise through the website, a daily newspaper, radio or other modes of communication, and the notice placed by the 3rd respondent, which reached the applicant, satisfied the provision
Section 37(1) permits advertisement through the Commission's website, at least one daily newspaper of nationwide coverage, the radio and other modes of communication. The court found the applicant himself applied after seeing the notice and was invited to interview on 17th July 2018, which demonstrated that the notice reached potential applicants. The respondents' unchallenged evidence showed the vacancy was circulated within the sub-county, where residency was a requirement. The advertisement therefore met the statutory threshold and the 'silent advert' allegation was unfounded.
Whether the recruitment was conducted by unauthorised persons without written delegation
The PSC's delegated authority to the authorised officers was constitutional and unchallenged; the recruitment was lawful
Article 234(5) permits delegation in writing, and section 2 of the Public Service Commission Act defines an authorised officer as one appointed by the Commission to perform delegated functions. Dr Kibicho's sworn averment that delegation existed was not challenged by the applicant. Relying on the ex parte Daniel Chacha decision, the court held the delegation was constitutional. The Omtatah decision was applied to show Parliament may legislate on recruitment and selection procedures auxiliary to Article 234.
Alleged breach of natural justice and Article 47 (fair administrative action)
No breach established; the applicant applied, was shortlisted, invited and interviewed, so the process was transparent and fair
The applicant's own documents showed he applied and received an invitation letter through the chief's office, contradicting his claim that he learnt of the process through friends. The respondents' evidence showed all invited candidates signed a delivery book, a panel scrutinised 22 applicants, interviewed 10, and recommended the best three to the appointing authority. Allegations of bias, corruption and unfair advantage were speculative and unsupported. The court declined to re-evaluate the merit ranking, as that is outside judicial review.
Legal principles established
#- Under Article 234(5) of the Constitution the Public Service Commission may delegate, in writing, its functions and powers to any officer, body or authority in the public service, and appointments made by such authorised officers are lawful
- The merits of a selection decision are not a matter for judicial review, which concerns only the lawfulness of the process
- Judicial review does not examine evidence to determine substantial merits but only compliance with constitutional, statutory and procedural requirements
Court orders
#- 1.Interim orders issued in the proceedings vacated
- 2.The judicial review application by the ex parte applicant dismissed
- 3.Costs awarded to the 2nd, 3rd, 4th and 5th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court (Constitution Article 234 and Public Service Commission Act, section 37 raised as governing law)
Relief refused
#Order of certiorari to quash the appointment of the 1st respondent as Assistant Chief II, Chepkitwal Sub-location
The process complied with the law; delegation under Article 234(5) and section 37 was valid and the advertisement reached the applicant, who applied and was interviewed
Order of prohibition restraining the 3rd, 4th and 5th respondents from acting on the appointment decision
The orders sought failed to meet the required threshold as due process was followed
Order of mandamus directing the 2nd respondent to commence a fresh selection, recruitment and appointment
The application was found without merit and dismissed, so no fresh recruitment was ordered
Costs
Costs to the 2nd, 3rd, 4th and 5th respondents
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 orders sought fail to meet the required threshold. Interim orders issued are hereby vacated.
Accordingly, for the reasons above, the proceedings herein by the ex parte applicant is found without merit. The application is hereby dismissed. Costs to the 2nd, 3rd, 4th, and 5th respondents.
Judicial review is different from ordinary adversarial litigation between private parties as it does not entail examination of the evidence with a view to making a decision about the substantial merits of a case, but rather an examination as to whether there was compliance with the applicable constitutional, statutory and procedural requirements.
Section 37 of the Public Service Commission Act read together with Article 234(5) of the Constitution allowed the PSC to delegate its mandate to the authorised officer
The provisions of Article 234 of the Constitution, 2010 should therefore be read in whole and not in part as to read these provisions in part would lose the reading of the whole and the context and import of the provisions allowing for delegation of mandate where appropriate and allowed by statute.
Issues in the judgment
#The judgment inconsistently attributes the appointment decision - the grounds describe it as the decision of the '5th respondent' (the Attorney General) while the replying affidavit evidence and the operative analysis attribute the recruitment and appointment to the 3rd, 4th and 5th respondents acting under delegation, with the appointing authority being the Principal Secretary (4th respondent).
The judgment refers to a '6th respondent' filing the Replying Affidavit although only five respondents are named in the cause title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaack Kipyegon Koech & 4 others Ex Parte Kipkirui Koech [2020] KEELRC 573 (KLR)", Case Analysis (2020). Judicial Review Application No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/573/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.