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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 59 (KLR)

Kipkosgei Langat v Mamo Boru & 6 others [2019] KEELRC 59 (KLR)

Employment and Labour Relations Court of Kenya
11 December 2019
RSRadido Stephen
850 words in judgment
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The bottom line

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A Kenyan court upheld a NEMA officer's secondment but ordered authorities to disclose its length and terms, ruling judicial review unnecessary for fixable administrative lapses.

What this practically means

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Executive summary

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The applicant, a senior officer of the National Environment Management Authority (NEMA), was notified in August 2019 that the NEMA Board, at the request of the Cabinet Secretary for Environment and Forestry, had resolved to deploy him to the Ministry to assist in implementing critical programmes, while NEMA continued to pay his remuneration. Having obtained leave, he sought judicial review orders of certiorari and prohibition to quash the deployment, arguing he was not consulted, the length of secondment was undisclosed, the Principal Secretary had not initiated the request, Public Service Commission secondment guidelines were not followed, and the deployment was in bad faith. The Respondents countered that the Cabinet Secretary acted under authority delegated by the Public Service Commission under Article 234(5) of the Constitution and the 2015 Delegation Instrument, and that the Board properly resolved on the deployment. The court held that the Cabinet Secretary validly exercised delegated power in requesting the deployment, rejecting the claim that the power was exclusively the Principal Secretary's. However, it found the deployment open-ended and lacking disclosure of its length and terms, contrary to the secondment Guidelines. This was an administrative lapse curable without judicial review; judicial review is discretionary and should issue only where efficacious, and the dispute could have been resolved through internal administrative structures. The court declined certiorari and prohibition but ordered the Respondents to notify the applicant of the length and terms of the secondment, with each party bearing its own costs. Judgment delivered in Nairobi on 11 December 2019 by Radido Stephen, Judge.

Key legal issues

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01

Whether only the Principal Secretary as Accounting Officer could request deployment of a public officer

Holding

The Cabinet Secretary was exercising delegated power from the Public Service Commission under Article 234(5) of the Constitution and the 2015 Delegation Instrument, so the request was lawful.

Reasoning

The court accepted the Respondents' position that the Public Service Commission has delegated human resource functions to Cabinet Secretaries under Article 234(5) of the Constitution and the Public Service Commission Delegation Instrument of 2015. The request for the applicant's deployment therefore emanated from an officer properly empowered, and the contention that the power was exclusively reposed in the Principal Secretary was rejected.

p. 2
02

Whether non-disclosure of the length and terms of secondment warranted certiorari and prohibition

Holding

The omission was an administrative lapse or irregularity curable without judicial review; the court instead ordered the Respondents to notify the applicant of the length and terms of secondment.

Reasoning

The court found the deployment open-ended though described as short-term, contrary to the Guidelines on secondment requiring disclosure of periods and conditions. However, judicial review is discretionary and should only issue where efficacious. The lapse could be cured administratively, so the court refused certiorari and prohibition and made a mandatory order for disclosure instead.

p. 2

Legal principles established

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  • Certiorari is a discretionary remedy which a court may refuse even where grounds exist, weighing whether the remedy is efficacious.
  • Judicial review serves no purpose where the grievance can be resolved through internal administrative structures.

Court orders

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  1. 1.The Court declined to issue judicial review orders of certiorari and prohibition
  2. 2.The Respondents were ordered to notify the applicant of the length of secondment and other terms and conditions of service as contemplated by the Delegation Instrument and the Public Service Commission Guidelines on Secondment
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Constitution of KenyaArticle 234(5)
  • Public Service Commission Guidelines on Secondment in the Public Service2016
  • Public Service Commission Delegation of Public Service Commission Human Resource Instrument2015
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; Article 234(5) of the Constitution on delegation of Public Service Commission functions

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, "Kipkosgei Langat v Mamo Boru & 6 others [2019] KEELRC 59 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/59/eng@2019-12-11

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