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ELRCPartially AllowedELRC Petition No 42 of 2014 consolidated with ELRC Petition No 27 of 2014

Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR)

Employment and Labour Relations Court of Kenya
30 July 2021
14,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that public officers can only be removed with stated reasons, and major policy changes require public participation.

What this practically means

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Executive summary

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This is a judgment of a three-judge bench of the Employment and Labour Relations Court at Nairobi, constituted under article 165(4) of the Constitution following a direction of the Court of Appeal, in consolidated Petitions Nos 42 and 27 of 2014 filed by Okiya Omtatah Okoiti and another, public spirited individuals. The petitioners challenged the removal and replacement of public officers - Rugut as Director of the National Youth Service, Semelang'o as Chairman of the Youth Enterprise Development Fund Board and Chepkwony as the National Youth Council nominee - the appointment of the 2nd respondent as State House Chief of Staff and Head of Public Service, the Central Human Resource Management Postings Committee, and the Policy on Decentralisation of Human Resource Management in the Civil Service. The court first held that the petitioners had locus standi under articles 22 and 258 of the Constitution and that the ELRC had jurisdiction over these public employment disputes. It found the 2nd respondent's appointment lawful under article 132(4)(a) and the National Government Coordination Act, with PSC approval. It found the transfer of Rugut lawful under section E.30 of the PSC Code of Regulations and Ayungo's appointment lawful, holding that dual NYC/YEDF positions were contemplated in law. However, it held the revocation of Semelang'o's appointment unlawful for want of reasons under section 7(3) of the State Corporations Act and article 47, and the appointment of Bruce Odhiambo unlawful as it should have been for the remainder of Semelang'o's term. The Decentralisation Policy was declared invalid for want of public participation contrary to article 10 and section 58 of the PSC Act, and quashed, with directions that the PSC subject it to public participation. Each party was ordered to bear its own 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 petitioners have locus standi to institute the Petition seeking to enforce private law claims
  2. 2.Whether the Central Human Resource Management Postings Committee is valid vis-a-vis the PSC
  3. 3.Whether the appointment of the 2nd respondent as State House Chief of Staff and Head of Public Service by the President is ultra vires the Constitution
  4. 4.Whether there is constitutional and legal basis to remove persons employed by the PSC from office and appointment of others into office in the public service as effected by the 1st respondent assisted by the 2nd respondent
  5. 5.Whether the Policy on Decentralisation of Human Resource Management in the Civil Service is unconstitutional, an imposition on the PSC and contrary to articles 155(2) and 234 of the Constitution
  6. 6.Whether the Court should exercise its powers under article 23(3) of the Constitution to issue any other appropriate relief, including compensation for Mr Chepkwony, Mr Semelang'o and Mr Rugut
  7. 7.Who should bear costs

Key legal issues

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01

Locus standi and jurisdiction of the ELRC

Holding

The petitioners, as public spirited individuals, have standing under articles 22 and 258 of the Constitution and the ELRC has jurisdiction over disputes relating to appointment, transfer and removal in the public service

Reasoning

The court held that courts have moved away from strict standing rules in public law litigation, citing article 258 and the liberal approach in Priscilla Nyokabi Kanyua. The core complaints concerned appointment, transfer and removal of public officers and terms and conditions of civil servants, which are labour relations matters within the ELRC's jurisdiction under the ELRC Act, the Employment Act and article 162(2) and (3) of the Constitution.

p. 22
02

Appointment of the 2nd respondent as State House Chief of Staff and Head of Public Service

Holding

The appointment is constitutional and lawful, being grounded in article 132(4)(a) of the Constitution, section 13 of the National Government Coordination Act and PSC approval

Reasoning

The President may establish an office in the public service in accordance with PSC recommendations and may establish offices in his private office. The PSC at its 2324th meeting approved establishment of the Chief of Staff post. The court endorsed prior decisions by Abuodha J and Ongaya J upholding the office and found the matter res judicata in part.

p. 25
03

Removal of Semelang'o as Chairman of the YEDF Board and appointment of Bruce Odhiambo

Holding

The removal was unlawful for want of reasons under section 7(3) of the State Corporations Act read with article 47 of the Constitution, and the appointment of Odhiambo for a fresh three-year term was unlawful as it should have been for the remainder of Semelang'o's term

Reasoning

The President has power under section 7(3) of the State Corporations Act to revoke a board member's appointment, but only if it appears the Board has failed to carry out its functions in the national interest, and the decision must be supported by reasons per article 47. No reasons were given for the revocation. Further, the replacement appointment should have been for the remainder of the revoked member's period of office.

p. 7
04

Transfer of Rugut as Director NYS and appointment of Dr Githinji

Holding

The transfer and subsequent appointment were lawful, effected under the PSC Code of Regulations section E.30 and the Central Human Resource Management Posting Committee framework

Reasoning

Transfer is a legitimate employer prerogative subject to being exercised lawfully and non-arbitrarily. Section E.30 of the PSC Code of Regulations permits transfers sanctioned by the Central Postings Committee for officers in Job Group 'P' and above. Article 155(2) empowered the Principal Secretary as administrative head. The court found the regulations reasonable and the transfer lawful.

p. 30
05

Validity of the Central Human Resource Management Postings Committee

Holding

The Committee is a lawful structure under section 11(c) of the PSC Act and the PSC had not ceded its mandate

Reasoning

The Committee serves as a coordinating framework of authorised officers to transfer staff across ministries, exposing officers to diverse work experiences. The PSC limited it to oversight and appeals and had not ceded its mandate; section 11(c) of the PSC Act empowers the Commission to do all such things as necessary for effective discharge of its functions.

p. 37
06

Appointment of Ayungo to the YEDF Board while serving as NYC Chairperson

Holding

The appointment was lawful and did not constitute double employment, being contemplated by the YEDF Order and the NYC Act

Reasoning

Section 5(2)(f) of the YEDF Order contemplates a person nominated by the National Youth Council and appointed by the Minister. The NYC is non-executive with a Secretary running daily affairs, so holding both positions is contemplated in law. The appointing authority for both was the Minister, and the Gazette Notices properly published the appointments.

p. 32
07

Validity of the Policy on Decentralisation of Human Resource Management in the Civil Service

Holding

The Policy is invalid for want of public participation contrary to article 10 of the Constitution and section 58 of the PSC Act

Reasoning

While the PSC may delegate its functions under article 234(5), policy changes affecting stakeholders require public participation. Only internal stakeholders (line ministries and the Union of Civil Servants) were consulted; the wider public was not engaged. Article 10 values are justiciable and immediate, and the PSC Act requires the Commission to be guided by national values in its mandate.

p. 37

Legal principles established

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  • Revocation of appointment of a member of a state corporation board under section 7(3) of the State Corporations Act requires reasons and due process; a revocation without stated reasons is unlawful
  • Where a board member's appointment is revoked, any replacement should be for the remainder of the revoked member's term unless the entire Board is reconstituted
  • Public participation is imperative in policy changes likely to affect stakeholders; failure to publicise and consult the wider public invalidates a policy under article 10 of the Constitution and section 58 of the PSC Act
  • Locus standi in public interest litigation is construed liberally; a petitioner bona fide acting in the public interest has standing under articles 22 and 258 of the Constitution
  • Delegation of authority does not part with power; the principal remains responsible and accountable for delegated functions

Court orders

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  1. 1.Declaration that the removal of Mr Gor Evans Semelang'o as Chairman of the Board of the Youth Enterprise Development Fund and the subsequent appointment of Mr Bruce Odhiambo to replace him were unlawful
  2. 2.Declaration that the appointment of Bruce Odhiambo was unlawful and contrary to the provisions of section 7(3) of the State Corporations Act
  3. 3.Order quashing the Policy on the Decentralisation of Human Resource Management in the Civil Service, May 2014 for want of public participation
  4. 4.The Public Service Commission shall subject the Policy on Decentralisation of Human Resource Management in the Civil Service, May 2014 to public participation in its formulation and formation pursuant to article 10 of the Constitution and the Public Service Commission Act
  5. 5.Each party shall bear own costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 258, 41 and 162(2) and (3) of the Constitution; Employment and Labour Relations Court Act, 2011; Bench constituted under article 165(4) of the Constitution pursuant to the direction of the Court of Appeal in Civil Appeal No 4 of 2015
Consolidated with
ELRC Petition No 27 of 2014

Relief refused

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Declaration that the removal of Rugut as Director NYS and appointment of Dr Nelson Githinji were null and void; orders quashing the transfer letter and restoring Rugut to office

The court found the transfer of Rugut by the 3rd respondent was lawful under the PSC Code of Regulations and the PSC Act

p. 8

Declaration that the 2nd respondent's appointment as State House Chief of Staff and Head of Public Service is ultra vires the Constitution and prohibition restraining him from acting as Head of Public Service

The appointment was made in accordance with article 132(4) of the Constitution, the National Government Coordination Act and with PSC approval

p. 25

Declaration that the dismissal of Samuel Chepkwony and appointment of Clement Ayungo were null and void; quashing Gazette Notice No 3021 and restoring Chepkwony

The court found Ayungo's appointment lawful and that holding both NYC and YEDF positions is contemplated in law

p. 32

Order for compensation for Mr Chepkwony, Mr Semelang'o and Mr Rugut under article 23(3)

The court held the petitioners were acting in public interest and that declaratory orders would suffice

p. 37

Order that the 1st respondent is unfit to hold public office

No finding of unfitness was made in the final orders; the reliefs granted were confined to the Semelang'o removal, Odhiambo appointment and the Decentralisation Policy

Costs

Each party shall bear own 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.

Accordingly, on the analysis and findings above, the petition partially succeeds and judgement is entered in the following terms;
p. 37disposition
Declaration is hereby issued that the removal of Mr. Gor Evans Semelang'o as the Chairman of the Board of the Youth Enterprise Development Fund and the subsequent appointment of Mr. Bruce Odhiambo to replace him were unlawful;
p. 37final orders - Semelang'o removal
An Order is hereby issued quashing the Policy on the Decentralisation of Human Resource Management in the Civil Service, May, 2014 for want of public participation;
p. 37final orders - quashing of policy
Each party shall bear own costs.
p. 38costs
There is jurisdiction and the petitioners have the requisite standing to urge the instant petition.
p. 22locus standi and jurisdiction
For want of reason(s), there was breach of section 7(3) of the State Corporations Act. Semalang'o was removed from ofice unlawfully.
p. 7removal of state corporation board chairman
The appointment of Bruce Odhiambo was unlawful and contrary to the provisions of section 7(3) of the State Corporations Act.
p. 7unlawful appointment
The Policy on Decentralisation of Human Resource Management in the Civil Service, May 2014 is hereby found invalid for want of public participation in its formulation and formation contrary to article 10 of the Constitution and section 58 of the PSC Act.
p. 37public participation
The Transfer of Rugut by the 3rd respondent by letter dated May 9, 2014 was lawful and in tandem with the definition assigned to a transfer under section 2 of the PSC Act;
p. 8lawfulness of transfer
Delegation does not imply parting with powers by the person who delegates but confers authority to do things which otherwise the person delegating would have to do himself.
p. 33delegation

Issues in the judgment

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minor

Paragraph numbering anomaly: a passage in the Semelang'o discussion is numbered '71.' although paragraph 71 appears earlier, and its text ends mid-thought before resuming at paragraph 97

minor

Inconsistent Gazette Notice details: the appointment of Semelang'o is described as Gazette Notice No 1828 of February 15, 2013 in one passage and February 5, 2013 in another

minor

Gazette Notice No 2339 revoking Semelang'o is inconsistently dated February 27, 2014 in parts of the judgment and April 7, 2014 in another

minor

Erroneous date reference: the judgment states article 41 and 162(2) and (3) of 'the Constitution, 2007' although the Constitution cited throughout is the 2010 Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR)", Case Analysis (2021). ELRC Petition No 42 of 2014 consolidated with ELRC Petition No 27 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2306/eng@2021-07-30

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