John Chebun Bor (Acting on Behalf of the Terik Community) v Wilber K. Ottichillo & 2 others [2018] KEELRC 2453 (KLR)

The court accepted the Githinji criteria (service to a real or legal person and receipt of a wage/salary), added direction and control as a fourth criterion, and held that a Governor and County Executive Members are in an employment relationship. It further held that recruitment processes, not only post-appointment disputes, fall within section 12 jurisdiction, and that the petitioner as a third party may sue under Articles 22 and 23. Relying on Mugendi and Shollei, it confirmed the ELRC's exclusive competence over such employment-related constitutional issues.

The court distinguished the Supreme Court's Wambora ruling, noting courts should not interfere with ongoing legislative proceedings but may examine outcomes and clear unconstitutional conduct. Since nominations were made and vetting largely complete, scrutiny before final appointment was appropriate; the court could review the impugned action and if wanting, have it made right before final appointment.

Applying Giella v Cassman Brown, the court found a prima facie case with probability of success but concluded the applicant had other statutory and constitutional remedies, so irreparable injury was not shown. Public interest favoured allowing the County Government to discharge its constitutional mandate to govern. The injunction was refused and interim orders discharged.