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
#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
- 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
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.