Hon. Paul Simba Arati, Governor, County Government of Kisii & 4 others v Vincent Mariita Omao & 4 others
The bottom line
#Kenya's Court of Appeal confirmed governors may appoint County Attorneys without advertising the job, reversing a decision that had quashed Kisii's appointment.
What this practically means
#Executive summary
#Key legal issues
#Whether a County Attorney must be competitively recruited and advertised
No. Section 5 of the Office of the County Attorney Act confers a discretion on the Governor analogous to the President's discretion in appointing the Attorney General; the specific provision prevails over the general Public Appointments (County Assemblies Approval) Act, and the County Assembly vetting process provides the public participation safeguard.
The court adopted the binding reasoning in Evans Muswahili: the Office of the County Attorney Act, enacted later, prevails over the general approval statute; section 17 requiring competitive recruitment of the County Solicitor shows Parliament knew how to require advertisement and deliberately did not for the County Attorney; qualifications in section 5(2) and Chapter 6 plus Assembly vetting suffice. Reading in pre-conditions was held inimical to devolution under article 174.
Effect of binding precedent on the Employment and Labour Relations Court
The trial judge erred in failing to follow the directly binding Court of Appeal decision in Evans Muswahili, which was on all fours, and in making no attempt to distinguish it.
Once the Court of Appeal has pronounced itself on an issue, the Employment and Labour Court and all lower courts are bound. The 1st and 2nd respondents' attempt to distinguish Evans Muswahili as dealing only with advertisement failed, because J Mohammed, JA expressly held that section 5(1) of the Public Appointments (County Assemblies Approval) Act does not import competitive recruitment for the County Attorney.
Whether the trial court could determine the petition after finding it abandoned
It was improper for the trial judge to proceed to determine the Amended Petition on the merits after concluding the petitioners had abandoned it, without at least giving the appellants an opportunity to be heard on the abandonment question.
The trial judge made a factual finding that the petitioners had failed to prosecute the petition by not filing submissions timeously, then proceeded anyway citing 'substantive justice'. The court held that procedural due process required the judge to hear the appellants on that question before electing to determine the petition. However, the court did not rest its outcome on this point, having already allowed the appeal on the substantive issue.
Legal principles established
#- Governors are not required to advertise or competitively recruit County Attorneys; appointment is at the Governor's sole discretion under section 5 of the Office of the County Attorney Act, subject to the qualifications in section 5(2) and Chapter 6, with public participation secured through County Assembly vetting and approval
- The Employment and Labour Court and all lower courts are bound by the Court of Appeal's pronouncement in the Evans Muswahili case that County Attorneys need not be competitively recruited
- Section 5(1) of the Public Appointments (County Assemblies Approval) Act governs vetting procedure only and does not import a substantive requirement of advertisement or competitive recruitment for the office of County Attorney
- A trial judge who reaches a factual conclusion that a petition has been abandoned for failure to prosecute must, at the very least, afford the parties an opportunity to be heard on the question before determining the petition on the merits
Court orders
#- 1.Appeal allowed
- 2.The 1st and 2nd appellants shall pay the costs of the appeal to the appellants and to the 3rd, 4th and 5th respondents (as recorded in the judgment, notwithstanding its apparent typographical inconsistency)
- 3.Orders accordingly
- On appeal from
- Employment and Labour Relations Court, Kisumu
- Not stated in the judgment (Amended Petition dated May 24, 2023)
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (the judgment invokes the court's mandate 'to review issues of both facts and law afresh'); no specific constitutional or statutory provision is cited as the jurisdictional basis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Paul Simba Arati, Governor, County Government of Kisii & 4 others v Vincent Mariita Omao & 4 others", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1421/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.