Cren Solitei Kipoopo (Suing on his Behalf and that of the General Public) v County Government of Kajiado & 2 others [2015] KEELRC 836 (KLR)
The bottom line
#Kenya's Employment Court dismissed a petition challenging a county Chief Officer's appointment, ruling that unproven workplace misconduct does not violate constitutional integrity requirements.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a transferred petition on appointment of a County Chief Officer
The Court is properly seized of the matter; it was transferred from the High Court and the ELRC can interpret the Constitution and enforce fundamental rights in matters under Section 12 of the Industrial Court Act.
The Court noted the matter was filed in the Human Rights Division of the High Court and transferred. The Employment and Labour Relations Court constituted under the Industrial Court Act 2011 is competent to interpret the Constitution and enforce fundamental rights in matters within Section 12. Given Article 159(2)(b) and the injustice of making parties move from court to court, the jurisdictional question stands moot.
Locus standi of the Petitioner suing as an official of a community based organisation
The Petitioner has standing, having sued in his own name and on behalf of a group whose interest he represents, as permitted by Articles 22 and 258 of the Constitution.
Relying on Anarita Karimi, the court reiterated petitions must be pleaded with reasonable precision. Articles 22 and 258 allow any person to sue on their own behalf, as a member of or in the interest of a group, or in the public interest. The Petitioner filed in his own name outlining his interest as comprising the members of Kajiado County Congress, thereby satisfying the standing rule.
Whether the appointment of the Interested Party complied with Chapter Six of the Constitution
The appointment complied with Chapter Six; no criminal record existed impinging on the Interested Party's integrity at the time of appointment.
Allegations of carnal knowledge of a pupil were never criminally established: the Interested Party was interdicted, suspended pending investigations, reinstated and never charged. Under the Penal Code the criminal elements of unlawful carnal knowledge of a girl under fourteen were never established. Dismissal for desertion is a workplace gross misconduct matter under section 44(4) of the Employment Act, not a Chapter Six integrity issue. Condemning him on uninvestigated, uncharged allegations would be condemning him unheard.
Whether the vetting and nomination process was procedurally sound
The 2nd Respondent followed due process; the Interested Party was vetted, public notice was issued, and reservations raised before swearing-in were addressed by the County Assembly.
The court found the Interested Party went through vetting with a public notice inviting information. Before appointment the swearing-in was stopped so availed information could be addressed, with the County Assembly referring the matter back. The court held the nomination had sufficient and good grounds and allowing him to take up office was not unconstitutional.
Legal principles established
#- Allegations of unlawful carnal knowledge must be criminally established before they can impinge on a public officer's integrity under Chapter Six; workplace interdiction or suspension pending investigations does not equate to criminal guilt.
- Desertion of duty is a gross misconduct matter under section 44(4) of the Employment Act attracting summary dismissal, but does not touch on Chapter Six character or integrity.
- The Court reviews appointments to public office for procedural infirmities and legality, examining whether the appointing authority made proper inquiry into constitutional requirements.
- Litigants who raise substantial constitutional questions without success should not be penalised in costs, to encourage development of constitutional jurisprudence.
Court orders
#- 1.Petition dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution read with Section 12 of the Industrial Court Act, 2011; matter transferred from the High Court under Article 165(5)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cren Solitei Kipoopo (Suing on his Behalf and that of the General Public) v County Government of Kajiado & 2 others [2015] KEELRC 836 (KLR)", Case Analysis (2015). Petition No 40 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/836/eng@2015-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.