Anthony v Communications Authority of Kenya & 3 others (Petition E161 of 2021) [2022] KEELRC 1117 (KLR)
The bottom line
#A Kenyan court confirmed state corporation employees are public officers, but allowed Communications Authority recruitment to continue under existing rules.
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 petitioner has locus standi to file and prosecute the petition
- 2.Whether positions held in state corporations are in the public service subject to regulation by the 2nd or 3rd respondent
- 3.Whether section 31 of the Public Service Act is in conflict with articles 232, 233, 234, 235 and 236 of the Constitution and should be declared null and void
- 4.Who should regulate the human resource of state corporations
- 5.The reliefs to grant
Key legal issues
#Locus standi of the petitioner
The petitioner, acting in the public interest under articles 22 and 258 of the Constitution, has proper standing; the strict locus standi rule for private litigation is relaxed in public interest litigation
The 1st respondent argued the petitioner was a stranger without an employer-employee relationship. The court held that under articles 22, 23 and 258 any person may institute proceedings to vindicate the rule of law, and the petitioner filed on his own behalf and on behalf of the Kenyan public as a potential employee. Reliance placed on Okiya Omtatah Okoiti and Sumayya Athmani Hassan.
Whether state corporation positions are in the public service
Employees of state corporations are public officers within article 260 of the Constitution and part of the public service; the Katiba Institute holding on board members was distinguished as relating to presidentially appointed board members, not employees
The court traced the constitutional definitions of public officer, public office and public service, and relied on KUDHEIHA v SRC, Mathira Water, Mogaka Mogusu and Outa v Okello to hold that state corporations are agencies of government whose employees are paid from public funds. The three-judge Katiba Institute decision was distinguished as concerning board chairpersons and members, not employees recruited on terms of service.
Constitutionality of section 31 of the Public Service Commission Act
Section 31 is not unconstitutional; it mirrors article 234(5) which empowers the Commission to delegate functions in writing
Reading section 31 with article 234(5), the court held delegation is constitutional provided it is in writing; the PSC delegated functions by letter dated July 30, 2018 and recalled them on September 30, 2019. Delegation does not abdicate responsibility, per the Attorney General v IPOA case.
Who should regulate human resource of state corporations
The constitutional mandate vests in the Public Service Commission (3rd respondent), but pending legislative harmonisation the existing framework under the State Corporations Act and approved HR instruments remains operative for 365 days
The court found article 234(2) vests the mandate in the PSC and criticised its inaction in failing to investigate and audit under section 60 of the PSC Act and article 234(2)(d). However, because the 1st and 2nd respondents acted in accordance with the law as it stands, the approved HR instruments remain in operation while the PSC and Attorney General harmonise the legislation.
Conversion of employment terms and the 2015 consent orders
Conversion from permanent and pensionable to contract terms is lawful if done in consultation with, and with written consent of, the affected employee; the 2015 consent in a different suit does not bind all employees in perpetuity
Relying on sections 10(5) and 13 of the Employment Act, 2007, the court held any change to contractual particulars requires consultation and written notification. Employment is personal and each contract must be assessed on its own terms; whether consent was obtained requires individual interrogation.
Legal principles established
#- Employees of state corporations are public officers within the meaning of article 260 of the Constitution, and the Public Service Commission holds the constitutional mandate over human resource regulation of the public service including state corporations
- Delegation of constitutional power does not part with the power; the delegating authority remains accountable
- No law requires an employer to confirm an officer in a vacant position on account of having acted in that position
- Conversion of employment terms from permanent and pensionable to contract is lawful only with consultation and written consent of the affected employee
Court orders
#- 1.Pursuant to article 234(2) of the Constitution the 3rd respondent shall review, audit and make recommendations with regard to the 1st respondent human resource policies and practices of its officers/employees and report to the court within 365 days
- 2.The 3rd respondent shall undertake an investigation of the organisation, administration and personnel practices of the 1st respondent and report its recommendations within 365 days
- 3.The 3rd respondent is directed to develop Human Resource Policies and guidelines for the 1st respondent in strict compliance with the Constitution and the law based on orders (a) and (b) above
- 4.The 1st respondent shall re-issue the internal and other public advertisements for filling of vacant positions and allow receipt of applications within the next 14 days without placing to a disadvantage those who had already applied and those likely to apply in the extended period; the 1st respondent shall apply existing approved tools until receipt of recommendations of the 3rd respondent in accordance with (a) and (b) above
- 5.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 258, 162(2) and 165 of the Constitution; section 12 of the Employment and Labour Relations Court Act
Relief refused
#Declaration that section 31 of the Public Service Commission Act is unconstitutional and null and void
Section 31 must be read with article 234(5) of the Constitution which permits the Commission to delegate its functions in writing
Declaration that the 2nd respondent has no power to prescribe or approve HR policies for the 1st respondent
The 1st and 2nd respondents acted within the existing legal framework under section 27 of the State Corporations Act
Permanent injunction stopping the recruitment of Director Frequency Spectrum Management and Director Competition Management
The recruitment shall proceed as advertised under the approved HR policies and guidelines
Order to punish the 1st respondent for contempt of consent orders in ELRC Cause No 128 of 2015 (Juma Kiprono Kandie & 2 others v Communications Authority of Kenya)
A consent in a different suit cannot apply in perpetuity to regulate employment of all employees; conversion of terms requires individual written consent
Costs
Each party shall bear own costs
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 convergence is that officers and persons serving/working in state corporations are public officers within the meaning of article 260 of the Constitution.
The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives standing to any member of public acting bona fide and having sufficient interest in instituting an action for redress of public wrong or public injury.
Inherently, there exists no law which requires an employer to confirm an officer in a vacant position on account of having acted in such position whatever the period of service.
A consent filed in a different suit in the year 2015 cannot apply in perpetuity to regulate the employment of all employees of the 1st respondent particularly with regard to conversion of employment status from permanent and pensionable to contract terms even where the law permit and the subject employee has given consent pursuant to section 13 of the Employment Act, 2007.
As the petition is made on good foundation, each party shall bear own costs.
The 1st respondent shall re-issue the internal and other public advertisements for filling of vacant positions and allow receipt of applications within the next 14 days without placing to a disadvantage those who had already applied and those likely to apply in the extended period
Issues in the judgment
#The judgment inconsistently refers to 'section 31 of the Public Service Act' and 'section 31 of the Public Service Commission Act' for the same provision
The judgment quotes the three-judge Katiba Institute decision but its citations carry two different years ([2020] eKLR and [2021] eKLR) for what appears to be the same decision
Paragraph 59 of the judgment states the PSC delegated functions to 'the 3rd respondent' when context indicates the 2nd respondent was the delegatee
The court states the PSC delegated powers to the 1st respondent by letter dated July 30, 2018, whereas the petition and 3rd respondent's affidavit describe a July 30, 2018 delegation to authorised officers, and a December 14, 2015 delegation to the 2nd respondent
The case number and neutral citation of the petition are not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dock Workers Union (K) v Director of Occupational Safety and Health Services & 5 others; Federation of Kenya Employers & another (Interested Parties) (Petition E004 of 2024) [2025] KEELRC 51 (KLR)[2025] KEELRC 51 (KLR)23 Jan 2025applied
- Nguli v Southern Sky Safaris Limited & another (Cause E091 of 2023) [2025] KEELRC 50 (KLR)[2025] KEELRC 50 (KLR)23 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Anthony v Communications Authority of Kenya & 3 others (Petition E161 of 2021) [2022] KEELRC 1117 (KLR)", Case Analysis (2022). Not stated in judgment (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1117/eng@2022-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.