Etemesi v Attorney General & 4 others (Petition E021 of 2024) [2024] KEELRC 2535 (KLR)
The bottom line
#The Employment Court dismissed a challenge to a National Biosafety Authority board appointment, confirming the Cabinet Secretary had proper authority to reappoint.
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 Court has jurisdiction to hear and determine the petition
- 2.Whether the 2nd respondent had the relevant authority to reappoint Mr. Archibald Kithaka as a member of the 4th respondent's board
- 3.Whether the Public Service Commission (3rd respondent) had power to make or nullify the impugned appointment
- 4.Whether the reappointment violated Articles 10, 73 and 232 of the Constitution and whether reliefs should issue
Key legal issues
#Jurisdiction of the ELRC over appointment of a state corporation board member
The Court had jurisdiction because the appointment amounted to employment as a public officer under Article 260
The respondents argued there was no employment relationship since directors are not employees. Following Rogers Mogaka Mogusu v George Onyango Oloo and the Court's own decision in Rukaria v Attorney General, the Court held that board members of state corporations are public officers regulated by public service laws rather than company directors under the Companies Act, so the dispute falls within ELRC jurisdiction.
Whether the Cabinet Secretary had authority to make the appointment despite lack of gazettement of Executive Order No 1 of 2023
The 2nd respondent had the necessary statutory authority
Parties did not dispute that the President made the decision to reassign the Authority by Executive Order No 1 of 2023, compliant with Article 135. The gazette notice merely notifies a decision already made and serves as prima facie evidence, not the decision itself. Once assigned, the 2nd respondent became the Cabinet Secretary responsible for the Authority under section 6(1)(a),(f),(g) of the Biosafety Act.
Role of the Public Service Commission in the appointment
The Commission had no power to appoint or nullify the appointment
Article 234(2)(a)(ii) confers the Commission's appointment power subject to the Constitution and legislation. Section 6 of the Biosafety Act vests board appointment power in the Cabinet Secretary. The Commission's mandate is limited to promoting and evaluating compliance with values and principles of public service under Article 234(2)(c) and (h) and sections 63 and 64 of the Public Service Commission Act.
Whether the reappointment violated constitutional values on regional/ethnic representation
No violation was established; the petitioner failed to prove the board members' ethnicities or regions and no PSC compliance recommendation existed
The appointment was a reappointment after the lapse of the prior tenure, weakening any competitive-selection complaint. The petitioner failed to adduce evidence of board members' respective communities or regions, and some members sit by virtue of public office. The Commission, charged with auditing compliance with Article 232 values, had not made any compliance recommendation, leaving no basis for the Court's intervention.
Legal principles established
#- Gazettment of a presidential decision is prima facie evidence only; the decision itself is constituted by the President's signed and sealed writing under Article 135, and failure to gazette does not by itself impair the reassignment.
- Appointment as a member of a state corporation's board constitutes employment as a public officer, conferring jurisdiction on the ELRC.
- The Public Service Commission's power to appoint persons to hold public office is subject to legislation; where legislation vests appointment in another authority, the Commission has no power to appoint.
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, the Court holding that appointment of a state corporation board member is a public office/employment dispute
Relief refused
#Order nullifying the appointment of Archibald Munyi Kithaka
The Court found the appointment was made by the properly authorised Cabinet Secretary and the petitioner failed to prove non-compliance with constitutional values
Order compelling the 3rd respondent to advertise the position and conduct a proper interview and appointment
The Public Service Commission has no power to appoint members of the Board of the National Biosafety Authority, such power vesting in the Cabinet Secretary under the Biosafety Act
Costs
Each party to bear own costs of the petition
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 Court finds that the failure to gazette Executive Order No 1 of 2023 did not by itself impair the reassignment.
the gazette notice notifies of a decision already made by the President per Article 135, and which, in the instant case, the parties are not in dispute that the President indeed made the reassignment per Executive Order No 1 of 2023
Article 234(2)(a)(ii) of the Constitution gives power to the Public Service Commission to appoint persons to hold ofice in the public service and that power is subject to the Constitution and legislation as provided in the said Article.
In conclusion the petition is hereby dismissed with orders each party to bear own costs of the petition.
Issues in the judgment
#The judgment refers to the governing statute inconsistently as both the 'Biosafety Act, 2009' and the 'Biodiversity Act 2009'
The petitioner's pleading cites 'section 36(3) (d) of the Public Service Act' which appears to be a misnomer for the Public Service Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Etemesi v Attorney General & 4 others (Petition E021 of 2024) [2024] KEELRC 2535 (KLR)", Case Analysis (2024). Petition dated 20.02.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2535/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.