Governor, County Government of Kisii & 4 others v The Clerk, Kisii County Assembly & 4 others (Civil Appeal E101 of 2024) [2024] KECA 1538 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed governors can appoint County Attorneys without advertising the position, reversing a decision that had quashed Kisii's appointment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Are Governors required to publicly advertise and competitively recruit County Attorneys under the provisions of the law?
- 2.Whether the trial court could properly determine the Amended Petition on its merits after finding that the Petitioners had abandoned it by failing to file submissions as directed, without hearing the appellants on the question
Key legal issues
#Whether County Attorneys must be advertised and competitively recruited
No. The appointment is at the Governor's sole discretion under section 5 of the Office of the County Attorney Act; the trial judge erred in importing advertisement pre-conditions from the Public Appointments (County Assemblies Approval) Act and Articles 10 and 232
The Court found the trial judge bound by the Evans Muswahili decision of this Court, which was on all fours. The specific, later-enacted County Attorney Act prevails over the general Public Appointments (County Assemblies Approval) Act. Section 5(1) of that Act deals only with vetting procedure. The contrast with the competitively recruited County Solicitor under section 17 confirms that Parliament did not intend competitive recruitment for the County Attorney. Retaining fealty to legislative intention best serves the objects of devolution under Article 174.
Whether the trial judge could determine a petition he had found to be abandoned
No. Having found the petitioners failed to prosecute by not filing submissions, the judge should not have proceeded to the merits without at least inviting the appellants to address him on the notions of substantive justice at play
The judge made a factual finding that the petitioners had abandoned the petition, then proceeded to determine it anyway, indicating he would decline relief 'in the interest of substantive justice' without hearing the appellants on that notion. This impinged on the appellants' procedural due process. In any event, the appeal succeeded on the substantive issue, so the procedural defect did not need separate remediation.
Legal principles established
#- Governors are not required to advertise or competitively recruit County Attorneys; appointment under section 5 of the Office of the County Attorney Act is at the Governor's sole discretion, subject to statutory qualifications and County Assembly vetting
- The Office of the County Attorney Act, being the specific and later statute, prevails over the general Public Appointments (County Assemblies Approval) Act; section 5(1) of the latter governs only vetting procedure and does not import competitive recruitment
- The Employment and Labour Court and all lower courts are bound by the Court of Appeal's pronouncement on the competitive recruitment question
- A trial court that finds a petition has been abandoned for failure to prosecute may not proceed to determine it on the merits without first hearing the other parties on the question
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 printed; see data quality flag)
- 3.Orders accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over a decision of the Employment and Labour Relations Court (Constitution Article 164 / Court of Appeal Act); no specific provision cited in the judgment
Relief refused
#Respondents' declarations and quashing orders against the appointment of the County Attorney (as granted by the trial court, now set aside by allowing the appeal)
The trial judge was bound by the Evans Muswahili precedent that the County Attorney need not be competitively recruited; Section 5(1) of the Public Appointments (County Assemblies Approval) Act imposes no advertisement requirement
Costs
The 1st and 2nd appellants shall pay the costs of the appeal to the appellants and to the 3rd, 4th and 5th respondents (as printed in the judgment).
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.
It requires no belabouring that once this Court has pronounced itself on an issue, the Employment and Labour Court and all lower courts are bound by that decision.
The Governor, just like the President with respect to the Attorney General, is not required to advertise for the position of County Attorney.
we think it was improper for the learned Judge to have proceeded as he did – at least without giving the appellants an opportunity to be heard on the question.
The upshot is that this appeal is for allowing and we hereby do so. The 1st and 2nd appellants shall pay the costs of the appeal to the appellants and to the 3rd, 4th and 5th respondents.
Issues in the judgment
#The costs order as printed is internally contradictory: it states the 1st and 2nd appellants shall pay costs 'to the appellants', though the appellants won and the losing parties were the 1st and 2nd respondents
The judgment inconsistently refers to the same statute as both 'County Attorney Act, 2020' and 'Ofice of the County Attorney Act', and the names of the 1st and 2nd respondents are not given in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Governor, County Government of Kisii & 4 others v The Clerk, Kisii County Assembly & 4 others (Civil Appeal E101 of 2024) [2024] KECA 1538 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1538/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.