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ELRCPartially AllowedPetition No 5 of 2013· [2013] KEELRC 881 (KLR)

Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & another [2013] KEELRC 881 (KLR)

Industrial Court of Kenya
8 November 2013
BOByram Ongaya
7,768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court cancelled a water company's job hires because recruitment lacked proper documentation, forcing a transparent redo.

What this practically means

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Executive summary

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The Industrial Court at Nakuru, presided over by Byram Ongaya J, determined a petition by the Trusted Society of Human Rights Alliance challenging the recruitment of a GIS analyst, internal audit manager, senior credit control officer and human resource and administration officer by Nakuru Water and Sanitation Services Company, a company wholly owned by the County Government of Nakuru. The court framed six issues covering legal capacity, standing, jurisdiction, the applicable recruitment law, compliance, and remedies. It held that an unincorporated association is a person under Article 260 and could sue in its own name; that although the petitioner failed to establish standing under Article 22 for pleaded rights violations, it had locus standi under Article 258(2)(c) read with Article 3(2) as a public-interest claimant, the court holding that Article 258 standing subsumes Article 22 standing. The court found jurisdiction on the basis of territory, parties, remedies and subject matter, holding recruitment to be an element of employment and labour relations under Article 162(2)(a) and section 12 of the Industrial Court Act. On the merits, the court held that public procurement legislation does not govern recruitment; the governing standards are Articles 10, 41, 73, 232 and Chapter 13 of the Constitution, the Employment Act 2007 and the Public Officer Ethics Act 2003. Examining the documentary record, it found no board decisions on short-listing, interview invitations issued by the managing director rather than the board, unexplained score sheets, and no board-authorised appointment letters. The recruitment was declared null and void, the respondent ordered to redo the process in strict compliance by 15.12.2013 under the oversight of the Public Service Commission, and costs awarded to the petitioner. The prayer for a declaration of unfitness against the managing director failed for want of natural justice, as he was not named a respondent.

Key legal issues

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01

Legal capacity of an unincorporated association to litigate

Holding

The petitioner, an unincorporated society, is a person under Article 260 and could sue in its own name.

Reasoning

Article 260 defines 'person' to include a company, association or body of persons whether incorporated or unincorporated. Traditionally suits by unincorporated associations were brought by officials, but the constitutional definition entitles the association to sue in its own name; the chairperson swore the supporting affidavit, confirming genuine natural persons composed the petitioner.

p. 3
02

Locus standi in public-interest constitutional litigation

Holding

The petitioner had locus standi under Article 258(2)(c) read with Article 3(2), acting in the public interest in constitutionally regulated recruitment by a public body.

Reasoning

The court held Articles 22 and 258 codify traditional sufficient-interest standing while liberalising it for those without sufficient interest within an objective sieving regime. Article 22 standing failed because no pleaded rights violation was established, but a claim of contravention of Articles 10 and 73 gave a valid Article 258 claim; public interest in constitutionally regulated recruitment conferred standing.

p. 6
03

Jurisdiction of the Industrial Court over recruitment disputes and rights enforcement

Holding

The court had jurisdiction on the grounds of territory, parties, remedies and subject matter, including enforcement of rights ancillary to employment.

Reasoning

Section 12(2) of the Industrial Court Act permits any person to move against an employer, so the absence of an employer-employee relationship did not bar jurisdiction. Recruitment is an element of employment under Article 162(2)(a); declarations are orders the court may make under section 12(3)(iv); and as a High Court-status court the Industrial Court enforces rights ancillary to labour matters.

p. 8
04

Law governing recruitment by a publicly owned company

Holding

Public procurement law does not apply; constitutional and statutory public-service provisions govern recruitment.

Reasoning

Candidates for employment are not goods and services under procurement legislation. The governing law includes Articles 10, 41, 73 and 232 and Chapter 13 of the Constitution, the Employment Act 2007, and for public bodies the Public Officer Ethics Act 2003, whose section 22 requires selection on integrity, competence and suitability.

p. 11
05

Compliance of the recruitment with the applicable law

Holding

The recruitment did not comply with the Constitution, statute or the respondent's own Human Resource Policy and Procedures Manual.

Reasoning

The list filed in court lacked the claimed yellow highlights; no board or selection-committee decisions on short-listing were produced; interview invitations were on the face issued by the managing director; score sheets lacked criteria or explanatory notes; and appointment letters were not expressed to issue from a board decision, so delegation of appointing authority could not be assumed.

p. 12

Legal principles established

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  • An unincorporated association is a person in law under Article 260 of the Constitution and may sue in its own name.
  • Standing under Article 258 (read with Article 3) subsumes Article 22 standing; a public-interest claimant with a valid claim of constitutional contravention has locus standi under Article 258(2)(c).
  • The Industrial Court has jurisdiction over recruitment disputes and to enforce fundamental rights ancillary to employment and labour relations.
  • Public procurement and disposal legislation does not govern recruitment of employees by public bodies; the applicable law is the constitutional provisions on public service (Articles 10, 41, 73, 232, Chapter 13), the Employment Act 2007 and the Public Officer Ethics Act 2003.
  • Without objective short-listing and interviewing instruments and evidence of their application, compliance with constitutional standards of public recruitment cannot be established.
  • Delegation of the appointing authority to a managing director cannot be assumed where the board's policy is silent on the appointing authority.

Court orders

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  1. 1.A declaration that the process of short-listing, interviewing, offering of appointments and appointments by the respondent for vacancies in offices of GIS analyst, internal audit manager, senior credit control officer and human resource and administration officer was in contravention of the relevant provisions of the Constitution, legislation and the 1st respondent's policies and therefore null and void
  2. 2.A declaration that the 1st respondent by itself, its board, its employees or by its agents is obligated to uphold the provisions of Articles 10, 73 and 232 of the Constitution in undertaking recruitment, selection, appointment and promotion of its employees
  3. 3.The 1st respondent to undertake the short-listing, interviews, offers for appointment and the appointments for the now vacant offices in strict compliance with the court's orders so as to complete the process by 15.12.2013, by which date the report of the process shall be filed in court and served upon the petitioner
  4. 4.The Public Service Commission to oversee the 1st respondent's compliance in exercise of its powers under Article 234(2)(c) and (d), with the petitioner to serve the judgment upon the Commission's Chairperson by close of 12.11.2013
  5. 5.The matter to be mentioned on a date convenient to all parties to confirm compliance with the orders
  6. 6.The 1st respondent to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 22, 23, 35, 41, 47, 48, 73, 162(2), 165(3), 232, 234, 258, 260
  • Industrial Court Act, 2011Section 12
  • Employment Act, 2007General
  • Public Officer Ethics Act, 2003Section 22
  • Public Procurement and Disposals Act, 2005General
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2 (definition of 'High Court')

Cases cited (9)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Pricilla Nyokabi Kanyua v Attorney General and Another
    [2010] eKLR
  • The Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Limited
    (1989) KLR 1
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    Industrial Court Cause No. 44 of 2011 at Nairobi
  • United States International University (USIU) v Attorney General and 2 Others
    [2012] eKLR
  • Gcaba v Minister of Safety and Security
  • Anne Nyokabi Muguiyi v NIC Bank Limited
    Petition No. 202 of 2011
  • Anarita Karimi Njeru v Republic
    (1979) KLR 154 at 156
  • Robert Muriithi Ndegwa v Minister for Tourism
    Petition No. 41 of 2012 at Nairobi
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & another [2013] KEELRC 881 (KLR)", Case Analysis (2013). Petition No 5 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/881/eng@2013-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.