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ELRCDismissedApplication dated 09.09.2019 in a Petition filed 22.07.2019· [2019] KEELRC 598 (KLR)

Ronoh Sitienei & 4 others v Pharmacy & Poisons Board & another; Attorney General & 4 others (Interested Parties) [2019] KEELRC 598 (KLR)

Employment and Labour Relations Court
25 October 2019
BOByram Ongaya
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court confirmed that Kenyan state corporations can appoint their own lawyers, and the Attorney General cannot represent two warring parties at once.

What this practically means

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Executive summary

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This interlocutory ruling by Byram Ongaya J of the Employment and Labour Relations Court, Nairobi, determined an application dated September 2019 by the Hon. Attorney General, supported by an affidavit of the Principal Secretary for Health, seeking the removal of Dr. Pius Wanjala from the record as advocate for the 2nd interested party, the National Quality Control Laboratory, and the striking out of his pleadings. The Attorney General argued that Dr. Wanjala, a public servant serving as Deputy Director in the Laboratory, was conflicted, lacked capacity to act, had no professional indemnity as external counsel, and was advancing private interests. The Laboratory, through its Director Dr. Hezekiah Chepkwony, opposed the application, relying on Board resolutions of 19.12.2018 and 23.05.2019 authorising Dr. Wanjala to handle its legal matters, his valid practising certificate, and the holding of Nyamweya J in the Moriasi judicial review case that state corporations, as autonomous bodies corporate, procure their own legal services through their accounting officers. The court found Dr. Wanjala duly appointed and instructed, followed the Moriasi authority, held there was no basis for the Attorney General to file a notice of appointment where the corporation had appointed its own counsel, and found an apparent conflict of interest in the Attorney General acting for both the 2nd respondent and the 2nd interested party whose interests were inimical. The application was dismissed with costs, the Attorney General's notice of appointment was expunged, Dr. Wanjala's notice was upheld, and the parties were directed to take prompt steps towards expeditious determination of the main petition.

Key legal issues

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01

Authority of an in-house officer to act as advocate for a state corporation

Holding

Dr. Pius Wanjala was duly appointed by the 2nd interested party's Board resolutions and revised job description, held a current practising certificate, and was entitled to appear for the 2nd interested party

Reasoning

The applicants did not challenge the evidence of Board resolutions of 19.12.2018 and 23.05.2019 mandating Dr. Wanjala to handle the Laboratory's legal matters. His practising certificate was issued in compliance with the Advocates (Professional Indemnity) Regulations, 2004. The court followed Nyamweya J's holding that procurement of legal services for state corporations is the responsibility of their accounting officers, confirming that the entity could instruct its own counsel independently of the Attorney General.

p. 3
02

Conflict of interest in the Attorney General acting for multiple parties

Holding

The 2nd interested party's interests are inimical to the respondents'; the Attorney General could not act for both the 2nd respondent and the 2nd interested party

Reasoning

The court found the conflict of interest apparent: the 2nd interested party, a state corporation under Cap. 244, was in dispute with the respondents whose removal of its Board was the subject of the petition. Allowing the Attorney General to act for both would not serve the interests of justice. The AG's notice of appointment was therefore amenable to being expunged from the record.

p. 3

Legal principles established

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  • A state corporation is a body corporate with capacity to appoint its own counsel, and the Attorney General has no automatic right to represent it where it has already appointed its own advocate
  • The Attorney General cannot act for two parties whose interests are inimical in the same proceedings

Court orders

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  1. 1.The application dated 09.09.2019 is dismissed with costs
  2. 2.The notice of appointment by the Hon. Attorney General to act for the 2nd interested party is expunged from record
  3. 3.The notice by Dr. Pius Wanjala to act for the 2nd interested party is upheld
  4. 4.Parties to take prompt further steps for the expeditious determination of the main petition or further steps in the proceedings
Jurisdiction invoked
Original petition jurisdiction of the Employment and Labour Relations Court; interlocutory application under Article 156 of the Constitution, sections 5, 6, 7 and 21 of the Office of the Attorney General Act, sections 9, 11 and 12 of the Public Officer Ethics Act and Order 51 rule 1 of the Civil Procedure Rules 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, "Ronoh Sitienei & 4 others v Pharmacy & Poisons Board & another; Attorney General & 4 others (Interested Parties) [2019] KEELRC 598 (KLR)", Case Analysis (2019). Application dated 09.09.2019 in a Petition filed 22.07.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/598/eng@2019-10-25

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