Okiya Omtatah Okoiti v National Executive of the Republic of Kenya & 2 others; Katiba Institute (Interested Party) [2020] KEELRC 1397 (KLR)

Katiba Institute did not itself apply to be joined; the Petitioner unilaterally included it, which the Court noted as an unusual but increasingly common practice. Although the Respondents were procedurally correct, they failed to show any prejudice, waste of judicial time, or impediment to a just determination. The Court accordingly overruled the objection and noted that Katiba Institute filed submissions supporting the Petitioner.

The Court found that the Petitioner set out the facts, the applicable constitutional and statutory provisions, and how they were allegedly violated, including national values, public service values and leadership responsibilities. The Court held that Anarita Karimi Njeru does not demand mathematical precision and welcomed the creeping epistolary jurisdiction from India into Kenyan law.

The office of Auditor-General is both a state and public office. Candidates must meet Chapter Six leadership and integrity requirements, including objectivity and impartiality. Independence is contextualised in section 10 of the Public Audit Act, and section 11(5) authorises the Panel to set interview criteria and scoring. The attributes of high moral character, integrity, impartiality, tact, independence and diplomacy were found in the text and spirit of the Constitution and the Act.

Construing section 11(5) and (6) of the Public Audit Act using the plain meaning, mischief and purposive approaches, the Court held the obligation is not qualified by whether three candidates were recommended. The purpose is transparency and accountability under the national values, Chapter Six and public service values. Releasing the proceedings would not prejudice a repeat process.

The Court held the Petitioner gave a narrow construction to section 11(8) and (10). Where no candidate meets the legal qualifications and criteria, the appointing authority may formally terminate the process upon the Panel's recommendation and start afresh. The termination provisions apply only where three qualified names were recommended.

The Panel's life is finite and lapses when a report is submitted to the President, whether recommending three candidates or a fresh process. Extension is possible, inferable from section 59 of the Interpretation and General Provisions Act, but requires a positive formal decision within 14 days. No such material existed, so the initial Panel lacked legal competence for the re-advertised process.

The open advertisement, transparent shortlisting, public announcement of the outcome and recommendation for re-advertisement, and the role of the National Assembly in approval satisfied the tenets of public participation. Only the failure to conduct interviews openly was not explained.