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ELRCPartially AllowedPetition (Employment and Labour Relations Court, Kisumu registry, heard at Nakuru) - filed 06.05.2014· [2014] KEELRC 1007 (KLR)

James Omariba Nyaoga v Speaker of the Kisii County Assembly & 2 others [2014] KEELRC 1007 (KLR)

Employment and Labour Relations Court of Kenya
23 May 2014
BOByram Ongaya
4,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that once an employer appoints someone, it cannot quietly reverse that decision without following proper legal process.

What this practically means

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Executive summary

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The petitioner, deployed by the Transitional Authority as Interim Clerk of the Kisii County Assembly following competitive identification by the Public Service Commission, petitioned the Employment and Labour Relations Court claiming he had been substantively appointed Clerk by the County Assembly Service Board with the Assembly's approval, and that the 1st and 2nd respondents (the Speaker and the Board) had thereafter harassed him, sought his invalid recall by the Transitional Authority, advertised his office for fresh recruitment, purportedly appointed the 3rd respondent as interim accounting officer, and evicted him from his office which was converted into a boardroom. The respondents contended the Assembly never approved the appointment for want of merit, competition and participation, and that the petitioner remained a Transitional Authority staff member. The court framed two issues: whether the petitioner was duly appointed Clerk, and whether he was entitled to the remedies sought. It found the appointment valid under section 13(1) of the County Governments Act, 2012, holding that the respondents were functus officio once the appointment was made and approved, and that recall was invalid absent due process. It further held the respondents violated Articles 41, 47(2), 50(1) and 236 of the Constitution through unfair labour practices and abuse of office. The petition was allowed: declarations issued, permanent injunctions granted, costs awarded against the respondents, and the judgment ordered served on the Ethics and Anti-Corruption Commission within seven days for investigations into leadership and integrity issues. A request for a perjury finding was declined for want of the criminal standard of proof.

Key legal issues

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01

Whether the petitioner was the duly appointed Clerk of the Kisii County Assembly

Holding

Yes - he was appointed by the County Assembly Service Board with the approval of the County Assembly in accordance with section 13(1) of the County Governments Act, 2012

Reasoning

The petitioner was interviewed by the Public Service Commission and deployed by the Transitional Authority as Interim Clerk. The Board resolved to retain and appoint him substantively, the resolution was forwarded to the Assembly per the order paper, the 1st respondent twice wrote letters conveying the Assembly's approval, and a Board member confirmed the appointment in exhibit JON14. No material doubted the appointment; the Board never varied it, and termination required due process.

p. 4
02

Whether the Transitional Authority could recall the petitioner after his substantive appointment

Holding

No - once the appointment was made and approved, the Board and Assembly were functus officio and the Authority could not validly recall him

Reasoning

The court held the power of appointment and approval is exhausted once exercised; recall was invalid absent due process under the Constitution, legislation and the parties' agreement.

p. 5
03

Whether the petitioner's rights were violated by the respondents' actions and omissions

Holding

Yes - the 1st and 2nd respondents violated the petitioner's constitutional and statutory protections, including Articles 41, 47(2), 50(1) and 236

Reasoning

The petitioner was denied reasons for the purported alteration of his employment, was intimidated and harassed over payment of professional subscriptions, was removed from his office which was converted into a boardroom, and an interim accounting officer was appointed while he was substantive clerk - all without due process and constituting unfair labour practices and abuse of office.

p. 6
04

Whether the petitioner was entitled to the remedies prayed for

Holding

Yes - the declarations and permanent injunctions as prayed for were granted

Reasoning

The respondents' opposition rested on the submission that the petitioner was not duly appointed, which the court rejected. There were no material rebuttals to the petitioner's case on the violations.

p. 6

Legal principles established

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  • An employer's power to appoint or approve an appointment is exercisable only once and is thereby exhausted; it can escape the appointee only through due process
  • A serving public officer competitively recruited by the Public Service Commission and deployed by the Transitional Authority during devolution did not require fresh open competitive recruitment for substantive appointment under section 13(1) of the County Governments Act

Court orders

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  1. 1.Declaration that the petitioner is entitled to protection under the Constitution including Articles 41, 47, 50(1) and 236
  2. 2.Declaration that the petitioner is the duly appointed and constituted Clerk, Kisii County Assembly, with mandate to exercise the functions of that office
  3. 3.Declaration that the actions and omissions of the 1st respondent constituted and amounted to unfair labour practices, mistreatment of the petitioner and gross abuse of office
  4. 4.Declaration that the 1st respondent violated the County Government Act, No. 17 of 2012 by evicting the petitioner from his office and converting it into a boardroom
  5. 5.Permanent injunction restraining the 1st and 2nd respondents from appointing or constituting the 3rd respondent or any other person as interim clerk or accounting officer, and from interfering with the petitioner's performance of his duties as Clerk
  6. 6.Permanent injunction restraining the 3rd respondent or any other person fronted by the 1st respondent from assuming or purporting to act as interim clerk and accounting officer, Kisii County Assembly
  7. 7.The respondents to pay costs of the petition
  8. 8.The petitioner to serve the Ethics and Anti-Corruption Commission with the judgment within seven days for appropriate investigations and action

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 47(2), 50(1), 77(1), 176, 232, 236, 15 of the 6th Schedule
  • County Government Act, No. 17 of 2012Sections 12, 13(1), 138
  • Transition to Devolved Government Act, No. 1 of 2012Section 17
  • Employment Act, 2007Sections 10(5), 51
  • Advocates Act and Law Society of Kenya Actrenewal of practising certificate provisions

Cases cited (3)

  • Silas Kipruto and Another -Versus- The county Government of Baringo and Another
    [2014] eKLR
  • High Court Petition No.21 of 2013 (Kisii)
  • High Court Petition No.4 of 2014 (Kisii)
Jurisdiction invoked
Constitution of Kenya 2010 - petition alleging violation of Articles 41, 47, 50(1) and 236 (employment and fair administrative action rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Omariba Nyaoga v Speaker of the Kisii County Assembly & 2 others [2014] KEELRC 1007 (KLR)", Case Analysis (2014). Petition (Employment and Labour Relations Court, Kisumu registry, heard at Nakuru) - filed 06.05.2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1007/eng@2014-05-23

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