Ngei v County Chief Officer Public Service Management and Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2024] KEELRC 1129 (KLR)
The bottom line
#Kenya's Employment Court quashed Migori County's 2023 recruitment adverts, confirming that county hiring must go through the County Public Service Board, not executives.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and functus officio
The court had already determined its jurisdiction in a ruling of 12th October 2023 dismissing a preliminary objection; it could not revisit the issue, the Respondent's remedy being appeal.
Despite the Respondent raising jurisdiction afresh in his replying affidavit and submissions, the court held that having substantively addressed the issue in the ruling of 12th October 2023, it was functus officio. The Respondent's only recourse was on appeal. The jurisdictional objection grounded on employer-employee relationship and exhaustion was therefore not entertained.
Locus standi of the Ex-parte Applicant
The Applicant had locus under Article 3(1), Article 22, Article 23, Article 47 and Section 5(2)(b) & (c) of the Fair Administrative Actions Act, notwithstanding the absence of an employer-employee relationship.
The Respondent argued that only employer-employee disputes fall within the ELRC's jurisdiction per Article 162(2) and Section 12(1) of the ELRC Act, citing authority that recruitment steps fall outside Section 12. The court instead rested standing on the entrenchment of judicial review and the constitutional right to challenge threatened violations of rights, including fair administrative action under Article 47, and found the Applicant properly before the court.
Legality of the advertisements and recruitments
The advertisements placed pursuant to a County Executive Committee directive were unlawful because recruitment and appointment of county public officers is a function reserved solely for the County Public Service Board under Sections 59(1) and 63 of the County Government Act.
The Respondent admitted placing the advertisements on the direction of the County Executive Committee communicated through the County Secretary. The court found that neither Section 36 (CEC functions) nor Section 44(3) (County Secretary mandate) includes recruitment or appointments; that role is reserved to the CPSB and is non-transferable. The claim that the CPSB processed the applications was unsupported, as the CPSB did not file an affidavit to confirm it.
Entitlement to reliefs
Certiorari and prohibition were granted; the mandamus and declaration prayers were not carried into the final orders.
Having found the advertisements unlawful, the court issued certiorari to quash the two advertisements and all consequential actions, and prohibition to restrain implementation or interference with the CPSB. It declined the indemnity costs prayer, awarding ordinary costs.
Legal principles established
#- A county government can only recruit and appoint county public officers through the County Public Service Board; the recruitment function is not transferable to the County Executive Committee or County Secretary
- Once a court has substantively rendered itself on an issue, it becomes functus officio and cannot revisit it; the aggrieved party's recourse is appeal
- Article 22 of the Constitution and Section 5(2)(b) & (c) of the Fair Administrative Actions Act confer standing on any person to challenge threatened or actual violations, irrespective of an employer-employee relationship
Court orders
#- 1.An Order of Certiorari issued to remove into the court for purposes of quashing the impugned decisions reposed in public advertisements dated 5th May 2023 referenced CGM/PSMD/001/2023 and CGM/PSMD/002/2023 and all consequential actions, decisions and proceedings thereon
- 2.An Order of Prohibition issued prohibiting the Respondent, his agents or employees from implementing, operationalizing, validating or giving effect to the impugned decision reposed in the said advertisements and all consequential actions, decisions and proceedings thereon, or in any way interfering with the management and operations of the Migori County Public Service Board contrary to the law
- 3.The Respondent shall bear the costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12(1) of the Employment and Labour Relations Court Act; judicial review and Bill of Rights jurisdiction under Articles 22, 23 and 47 and the Fair Administrative Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngei v County Chief Officer Public Service Management and Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2024] KEELRC 1129 (KLR)", Case Analysis (2024). JR No. E024 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1129/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.