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

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.

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.

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.

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.

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.

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.

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.