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ELRCPartially AllowedPetition (Nairobi) — filed 06.06.2018· [2018] KEELRC 1463 (KLR)

Okoiti v Kinyua & 2 others (Petition 51 of 2018) [2018] KEELRC 1463 (KLR)

Employment and Labour Relations Court
20 July 2018
10,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck down forced paid leave for public officials awaiting corruption vetting, ruling employers cannot force leave without due process.

What this practically means

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Executive summary

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Okiya Omtatah Okoiti, acting in person, petitioned against circular Ref. No. OP/CAB.39/1A of 4th June 2018 issued by Joseph K. Kinyua, Head of the Public Service, directing heads of procurement and accounting units in ministries, departments, agencies and state corporations to hand over and proceed on 30 working days' compulsory leave with full pay pending fresh vetting flowing from the President's Madaraka Day Speech. He sought declarations that the circular was a statutory instrument subject to the Statutory Instruments Act 2013, that the 1st respondent lacked capacity to issue it, that it was null and void ab initio, and an order of quashing. The respondents argued the circular was an administrative coordination measure in the fight against corruption, not subsidiary legislation, not disciplinary, and that the petitioner lacked standing. On 20th July 2018 Ongaya J held: the petitioner had public interest standing under Articles 22 and 258; the validity of the office of Head of Public Service was res judicata per Petition 24 of 2018 (Abuodha J); the 1st respondent's coordination role did not usurp the Public Service Commission's functions under Article 234; the President's Madaraka Day address was constitutional and not a roadside declaration; the circular was not a statutory instrument; and no Article 50 rights of accused persons were engaged. However, the design of compulsory leave with full pay, unprovided for in law and imposed without any adverse charge, offended Articles 47(1), 41(1), 129(2) and 232(1)(b) and was declared null and void to that extent only. The Court declared the vetting must comply with the Constitution and legislation. Costs were awarded against the 2nd and 3rd respondents jointly or severally; the 1st respondent, having acted in good faith, was not personally liable for costs.

Key legal issues

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01

Locus standi of the petitioner

Holding

The petitioner had standing as the cause of action was a public interest one; the affected officers need not be parties

Reasoning

The Court followed Afubwa and Mumo Matemu, holding that Articles 22 and 258 allow any person to sue in public interest. The primary cause of action was enforcement of the PSC's mandate against the circular, not enforcement of the officers' individual rights, so the affected officers did not need to be joined.

p. 14
02

Whether the circular was a statutory instrument under the Statutory Instruments Act 2013

Holding

It was not; it was issued in furtherance of the President's coordination function and not pursuant to delegated legislative power

Reasoning

A statutory instrument must be issued in execution of a power conferred by or under an Act of Parliament. The circular stated its source as the President's Madaraka Day Speech; the word 'proclamation' was construed literally as announcement, not a decree under an Act of Parliament.

p. 17
03

Lawfulness of compulsory leave with full pay

Holding

Unlawful to that extent; the circular was declared null and void only insofar as it imposed paid compulsory leave

Reasoning

No constitutional, statutory or regulatory provision provides for compulsory leave. Imposing leave without any adverse finding amounts to interdiction requiring due process, violates Article 47(1) reasonableness, constitutes unfair labour practice under Article 41(1), wastes public resources contrary to Article 232(1)(b) and is incompatible with Article 129(2).

p. 18
04

Whether the Head of Public Service usurped the PSC's mandate

Holding

No; the powers are constitutionally distinct

Reasoning

The Head of Public Service's responsibilities flow from the President's functions under Article 132(3)(b) as amplified by sections 7 and 8 of the National Government Co-ordination Act, 2013, and are separate from the PSC's functions under Article 234. The establishment of the office itself was res judicata per Petition 24 of 2018 (Abuodha J).

p. 15
05

Whether Article 50 rights of accused persons were violated

Holding

No; there was no case of an accused person; the vetting is a suitability appraisal, not a criminal process

Reasoning

The officers provide information in sealed envelopes and each constitutional or statutory authority would take over per its mandate. The vetting resembles recruitment, selection or promotion interviews and does not lead to a criminal process; if criminal investigations occurred, prescribed constitutional and statutory provisions would have to be complied with.

p. 19
06

Whether collective punishment was imposed

Holding

No; there being no established disciplinary process or criminal trial, collective punishment was not imposed

Reasoning

The Court followed its opinion in Kenya Plantation & Agricultural Workers' Union v Roseto Flowers that collective punishment yields absurd and unjust outcomes and is not tenable under the justice system. The offending portion of the circular was already addressed in the compulsory-leave findings.

p. 22

Legal principles established

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  • Articles 22 and 258 of the Constitution confer standing on any person, including in public interest litigation
  • A presidential proclamation must be in writing under Article 135; the Madaraka Day address satisfied that requirement
  • Employer-imposed compulsory leave without any adverse charge amounts to interdiction or suspension requiring due process, and paid compulsory leave without justification violates Articles 47(1), 41(1), 129(2) and 232(1)(b)
  • Presidential functions and powers may be exercised as occasion requires per the always-speaking doctrine of constitutional interpretation

Court orders

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  1. 1.Declaration that circular Ref. No. OP/CAB.39/1A of 4th June 2018 is illegal and unconstitutional only to the extent that by designing and prescribing imposition of a compulsory leave with full pay it contravened Articles 47(1), 41(1), 129(2) and 232(1)(b) of the Constitution and only to that extent it is rendered null and void
  2. 2.Declaration that the vetting, suitability or appraisal interviews in issue shall comply with the provisions of the Constitution and be through a lawful process as prescribed in relevant legislation, and where the prevailing legislation is deficient, such further legislation be enacted as necessary or appropriate
  3. 3.The 2nd and 3rd respondents to jointly or severally pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(4), 3(1), 4(2), 9(3), 9(4), 10, 12(1)(a), 19, 20, 21, 22, 23, 24, 25(c), 27, 41(1), 47(1), 48, 50(1), 50(2)(a),(b),(c),(l), 73(2)(a), 73(2)(c), 75, 129(2), 131, 132(1)(c), 132(3)(b), 132(4)(a), 156, 159, 162, 165(3)(b), 232(1)(b), 233, 234(2)(h), 236, 249(2)(b), 258, 259(1), 259(3)(a), 260
  • Statutory Instruments Act, 2013Section 2
  • Public Service Commission Act, 2017Sections 70, 71, 92(1)
  • Fair Administrative Action Act, 2015not specified
  • Leadership and Integrity ActSections 42, 42(7)
  • National Government Co-ordination Act, 2013Sections 7, 8, 22
  • State Corporations ActSection 7
  • Public Officer Ethics Act, 2003Sections 26, 28, 35, 36
  • Anti-Corruption and Economic Crimes Act, 2003Section 62
  • Public Service (Values and Principles) ActSection 13
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Service, May 2016Sections E and G

Cases cited (8)

  • Okiya Omtatah –Versus- Joseph Kinyua and the Public Service Commission Petition 24 of 2018
  • Timothy Otuya Afubwa & Another –Versus- County Government of Trans Nzoia & 3 Others
    [2016] eKLR
  • Mumo Matemu –Versus- Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Trusted Society of Human Rights Alliance –Versus- Nakuru Water and Sanitation Services Company & Another
    [2013] eKLR
  • Associated Provincial Picture Houses Limited –Versus- Wednesbury Corporation
    (1947) 2 ALL ER 680
  • Revital Healthcare (EPZ) Limited & Another –Versus- Ministry of Health & 5 Others
    [2015] eKLR
  • COD & Another –Versus- Nairobi City Water & Sewarage Co. Ltd
    [2015] eKLR
  • Kenya Plantation & Agricultural Workers' Union –Versus- Roseto Flowers
    [2013] eKLR
Jurisdiction invoked
Articles 22, 258 and 165(3) 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, "Okoiti v Kinyua & 2 others (Petition 51 of 2018) [2018] KEELRC 1463 (KLR)", Case Analysis (2018). Petition (Nairobi) — filed 06.06.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1463/eng@2018-07-20

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