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ELRCDismissedELRC Petition No. 69 of 2018 (Formerly High Court Constitutional Petition No. 239 of 2017)· [2019] KEELRC 18 (KLR)

Julius Otieno v The National Police Service [2019] KEELRC 18 (KLR)

Employment and Labour Relations Court of Kenya
3 December 2019
HWHellen S. Wasilwa
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that publishing shortlisted candidates on a commission's website satisfies the law — newspapers are not required for a fair public recruitment.

What this practically means

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Executive summary

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The Petitioner, a Nairobi resident, petitioned the High Court (later transferred to the ELRC as Petition No. 69 of 2018) under Article 22(1) of the Constitution challenging a recruitment drive by the National Police Service Commission advertised in the Daily Nation on 9th January 2017 for sixteen positions including Commission Secretary/Chief Executive Officer. He complained that the Respondent replaced its office holders without formulating Regulations under section 28(a) of the NPSC Act, failed to publish shortlisted candidates in newspapers thereby frustrating public objections under Chapter 6, unlawfully sent the then Secretary, Mr. Ojango Omumu, on compulsory leave and appointed Mr. Longinus Mulondo in an acting capacity, and that the overhaul shortly before the Commissioners' exit was not in the public interest. He sought injunctions, declarations of nullity, certiorari quashing the 22nd May 2017 decisions and costs. The Respondent, through a Replying Affidavit of its Chairperson Johnson Kavuludi, explained that the seconded officers were transitional recruits, that the recruitment was open, transparent and competitive, that the shortlist was published on its website with public invitation for comments, that Omumu's secondment lapsed and he received three months' notice, and that the office of CEO had since been filled. Justice Hellen S. Wasilwa framed two issues: whether the recruitment process contravened the law, and whether the Petitioner was entitled to the remedies sought. She found the shortlist had been published on the Respondent's website, that section 15 of the NPSC Act did not oblige newspaper publication, and that no right of the Petitioner was breached. The Petition was dismissed in its entirety with no order as to costs.

Key legal issues

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01

Whether failure to publish shortlisted candidates in a newspaper vitiated the recruitment process

Holding

The recruitment was lawful; publication of the shortlist on the Respondent's website and invitation to the public to submit information satisfied the requirements of transparency and competitiveness under section 15 of the NPSC Act and Article 250(2) of the Constitution

Reasoning

The court noted that after the advertisement the Respondent published the names of shortlisted candidates on its website (annextures JK16 and JK17) and invited members of the public to submit any information of interest. Publication in daily newspapers was not mandated by section 15, so the Petitioner and public had adequate opportunity to object on integrity and suitability grounds under Chapter 6. No right of the Petitioner was breached.

p. 5
02

Whether the Petitioner was entitled to the remedies sought

Holding

No; the Petition was dismissed in its entirety as the main prayers had been overtaken by events and no violation was established

Reasoning

The court observed on 16/7/2019 that the main prayer had been overtaken by events save for the declaration of nullity. Having found the recruitment process compliant with the law, the court held the Petition lacked merit and dismissed it without costs.

p. 5

Legal principles established

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  • Section 15 of the NPSC Act does not oblige a commission to publish shortlisted candidates in daily newspapers; publication on the commission's website with an invitation for public comments satisfies the transparency requirement

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 35, 41(1), 47, 73, 244(b), 250, 258, 260, Chapter 6
  • National Police Service Commission ActSections 15, 16, 28(a)
  • National Police Service ActSection 16
  • National Police Service Commission (Recruitment and Appointment) Regulations, 2015not specified
  • Public Service Commission Actnot specified

Cases cited (2)

  • Benson Riitho Mureiithi v J.W. Wakhungu & 2 others
    [2014] eKLR
  • Caleb Okech v Chief Justice and 2 others
    [2013] eKLR
Jurisdiction invoked
Article 22(1) of the Constitution (petition filed in the High Court and transferred to the ELRC)

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, "Julius Otieno v The National Police Service [2019] KEELRC 18 (KLR)", Case Analysis (2019). ELRC Petition No. 69 of 2018 (Formerly High Court Constitutional Petition No. 239 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/18/eng@2019-12-03

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