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ELRCDismissedJudicial Review Application (Exparte Applicant v Kisumu County Public Service Board)· [2018] KEELRC 884 (KLR)

Aloice Ager v Kisumu County Public Service Board [2018] KEELRC 884 (KLR)

Employment and Labour Relations Court
18 October 2018
1,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a public worker to challenge county recruitment in the public interest, but dismissed his case because he could not prove the hiring was unlawful.

What this practically means

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Executive summary

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The Exparte Applicant, Aloice Ager, sought to have the court recall, review or set aside an order of 10th July 2017 (by Hon. Maureen Onyango) staying recruitment by the Kisumu County Public Service Board, alleging that the Board had advertised about 500 positions without budgetary provision, contrary to Articles 10, 201(d), 232(1) and 255(2) of the Constitution and section 60(1)(g) of the County Governments Act, and that the recruitment would raise personnel emoluments by about Kshs. 600,000,000 to the detriment of the public. The Respondents raised a Preliminary Objection that the Applicant, having been appointed director of the Governor's press unit, was an employee of the Respondent and lacked locus standi. The court dismissed the objection, holding that Article 22(1) read with 22(2)(c) permits public interest suits and that personal interest does not detract from public interest, relying on the Machakos decision. On the merits, the Board's Chairman swore that 411 (not 500) positions were advertised on departmental requests with confirmed budgets, adverts were published, and 84 persons had been employed. The Applicant filed no further affidavit to contradict this evidence. Applying the Narankaik and Chudasama authorities, the court found the Applicant had failed on a balance of probabilities to prove excess of jurisdiction or breach of natural justice warranting certiorari and prohibition. The application was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

Locus standi of the Exparte Applicant

Holding

The Preliminary Objection that the Applicant, having been employed by the Respondent, lacked locus standi to sue in the public interest was dismissed

Reasoning

Article 22(1) read with Article 22(2)(c) allows any person to sue in the public interest. The court held that personal and public interests may coincide, and relied on the Machakos decision which jettisoned outdated locus standi rules for public-interest litigants. Employment by the respondent does not unclothe an applicant of standing.

p. 2
02

Whether the recruitment breached budgetary requirements under section 60(1)(g) of the County Governments Act

Holding

No breach established; the Board showed that departments confirmed budgets before recruitment

Reasoning

The Respondent's replying affidavit showed 411 (not 500) positions advertised on departmental requests, with each department confirming budget for emoluments, adverts published in newspapers and the county website, phased recruitment, and 84 appointment letters issued. The Applicant filed no further affidavit to contradict this evidence, and bore the onus under sections 107-109 of the Evidence Act.

p. 3
03

Whether writs of certiorari and prohibition ought to issue

Holding

No; the Applicant failed to prove excess of jurisdiction or breach of natural justice

Reasoning

Applying Narankaik and Chudasama, the court exercised supervisory jurisdiction under Article 165(6). The Respondent, as the organ mandated under Article 235(1) and sections 59 and 60 of the County Governments Act, staffed the County Government through a lawful, transparent process. The Applicant's onus was not discharged.

p. 3

Legal principles established

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  • Personal interest does not detract from public interest; a person may sue in both capacities
  • Certiorari issues to quash a determination for excess or lack of jurisdiction, error of law on the face of the record, breach of natural justice, or where procured by fraud, collusion or perjury

Court orders

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  1. 1.Preliminary Objection on locus standi dismissed
  2. 2.Application for recall, review or setting aside of the order of 10th July 2017 staying the recruitment dismissed in its entirety
  3. 3.Costs of the application awarded to the Respondents, to be borne by the Exparte Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1), 10(2), 22(1), 22(2)(c), 165(6), 201(d), 232(1), 235(1), 255(2)
  • County Governments Act, 2012sections 59, 60(1)(g)
  • Evidence Act, Cap 80 Laws of Kenyasections 107, 108, 109
  • Law Reform Act (Chapter 26 Laws of Kenya)

Cases cited (4)

  • Republic v Machakos County Government & 2 others Exparte Johnstone Muthama
    (2016) Eklr
  • Priscilla Nyakobi Kanyua vs Attorney General & Interim Independent Electoral Commission
    Nairobi HCCP No. 1 of 2010
  • Republic vs The Minister for Lands and settlement Exparte Narankaik & Another
    [1988] KLR 693
  • Republic Exparte Chudasama vs The Chief Magistrates Court Nairobi and Another
    [2008] 2EA 311
Jurisdiction invoked
Judicial review/supervisory jurisdiction under Article 165(6) of the Constitution of Kenya 2010

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, "Aloice Ager v Kisumu County Public Service Board [2018] KEELRC 884 (KLR)", Case Analysis (2018). Judicial Review Application (Exparte Applicant v Kisumu County Public Service Board). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/884/eng@2018-10-18

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