Okoiti v Cabinet Secretary, Industry, Trade and Co-operatives & 13 others; Kenya Bureau of Standards (Interested Party) (Petition 19 of 2020) [2022] KEELRC 1416 (KLR)
The bottom line
#Kenya's Employment Court cancelled the handpicked KEBS board and CEO appointments, ruling public jobs must be filled through transparent, merit-based recruitment.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over appointments to KEBS board and CEO
The Court has jurisdiction over appointments of council members and CEO of KEBS, being employment-related public office disputes within Article 162(2)(a)
The Respondents relied on Court of Appeal authority that petitions concerning constitutional commissions belong in the High Court. The Court distinguished that authority, noting it concerned members of constitutional commissions, not board members of state corporations. The Court noted it has heard and determined numerous cases involving appointment of chairpersons and board members of state corporations which were upheld on appeal.
Locus standi of the Petitioner
The Petitioner, acting in the public interest under Articles 22 and 258, has locus standi
Articles 22 and 258 permit any person acting in the public interest to institute proceedings to enforce the Bill of Rights or defend the Constitution. Relying on Kiluwa and Afubwa, the Court held the Constitution did away with locus requirements where a person is defending the Constitution. The Petitioner pleaded he brought the petition in the public interest.
Appointment of 5th to 13th Respondents to the NSC
The handpicked appointments violated Articles 10 and 232 and were null and void
The Respondents did not deny the appointees were handpicked; the Principal Secretary's affidavit admitted the appointments were not competitive. Articles 10 and 232 bind all state organs and state corporations and require transparency, fair competition and merit. Appointments made without a competitive, inclusive and merit-based process are therefore unconstitutional and void.
Appointment of the 14th Respondent as KEBS CEO
Appointment of a candidate outside the top three violated the Constitution and Government policy and was null and void
Section 5(1) of the Standards Act requires appointment of the Director on the advice of the Council. The Government circular of 23rd November 2004 requires the three best candidates be submitted. The Council's letter of 28th August 2019 recommended the top three, with the 14th Respondent only among two additional names. The preference for him over the best three was not satisfactorily explained and violated Articles 10 and 232.
Application by 5th Respondent to strike out names of 7th, 8th and 10th Respondents whose terms lapsed
Application dismissed as an abuse of process
Despite the lapsed terms, the Court should still determine whether their appointments complied with the Constitution. The history of serial applications by the 5th Respondent indicated an intention to delay judgment. The 5th Respondent also lacked standing to seek striking out of other respondents' names.
Legal principles established
#- Appointments to state corporations that do not comply with Articles 10 and 232 of the Constitution are unconstitutional
- The Constitution dispensed with strict locus standi requirements for persons defending the Constitution
- An appointing authority is bound to pick from the best candidates or explain why the best candidate was not picked
Court orders
#- 1.Declaration that the 1st Respondent's decision to handpick and appoint the Chairperson and independent members of the NSC without a transparent, competitive, inclusive and merit-based recruitment process was irregular, unlawful, unconstitutional and null and void ab initio
- 2.Quashing of the 1st Respondent's appointments and gazette notifications of Bernard M. Ngore as Chairperson and Mary Wanja Matu, Helen Kabeti Nangithia, Fouzia A. Abdirahman, Patrick M. Musila, Edward Njoroge, Eric Mungai, Gilbert Lang'at and Rogers Ochako Abisai as independent members of the National Standards Council
- 3.Declaration that the appointment of Bernard Njiinu Njiraini as Chief Executive Officer of the Kenya Bureau of Standards was invalid, null and void ab initio
- 4.Quashing of the 1st Respondent's appointment of Bernard Njiinu Njiraini as Chief Executive Officer of the Kenya Bureau of Standards
- 5.Order compelling the 1st to 4th Respondents to ensure new Chairperson and new independent members of the NSC are appointed strictly in compliance with the Constitution and national legislation
- 6.No orders for costs
- 7.Any prayers not granted stand dismissed
- Jurisdiction invoked
- Articles 22, 23, 162(2)(a) and 165(5)(b) of the Constitution of Kenya, 2010 as read with Section 12 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Okoiti v Cabinet Secretary, Industry, Trade and Co-operatives & 13 others; Kenya Bureau of Standards (Interested Party) (Petition 19 of 2020) [2022] KEELRC 1416 (KLR)", Case Analysis (2022). Petition No. E094 of 2020 (as context indicates an ELRC petition; judgment does not print its own number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1416/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.