John Chebun Bor (Acting on Behalf of the Terik Community) v Wilber K. Ottichillo & 2 others [2018] KEELRC 2453 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over nomination and vetting of County Executive Members
The preliminary objection fails; the court has jurisdiction because the impugned nomination and vetting relate to an employment and labour relationship
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.
Prematurity / interference with County Assembly vetting
The objection that the process was incomplete does not oust jurisdiction; the impugned nomination should be scrutinized before final appointment
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.
Requirements for interim injunction
Prima facie case established, but no irreparable injury and public interest opposes the injunction; application dismissed
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.
Legal principles established
#- The recruitment process of County Executive Members, including nomination and vetting, is subject to the jurisdiction of the ELRC as an employment and labour relationship
- A third party may bring proceedings on behalf of a marginalized community under Article 22 of the Constitution
- Beyond service and wage, a fourth criterion of employment is that the person be under the direction and control of the person to whom service is given
Court orders
#- 1.The preliminary objection is dismissed - the court holds it has jurisdiction to hear the petition on the nomination and vetting of County Executive Members
- 2.The application dated 27th October, 2017 seeking an interim injunction is dismissed
- 3.All interim orders issued pursuant to the various applications filed in this matter are discharged
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 as read with section 12 of the Employment and Labour Relations Court Act, Cap 234; Article 22 and 23 on enforcement of the Bill of Rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Chebun Bor (Acting on Behalf of the Terik Community) v Wilber K. Ottichillo & 2 others [2018] KEELRC 2453 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2453/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.