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ELRCOtherPetition (ELRC, Nairobi) filed 28th August 2019· [2019] KEELRC 752 (KLR)

Okoiti v Selection Panel for the National Land Commission & 3 others; Bw’omanwa & 7 others (Interested Parties) [2019] KEELRC 752 (KLR)

Employment and Labour Relations Court
24 September 2019
4,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear challenges to constitutional commission appointments, but sent the petitioner back to Parliament to finish the vetting process first.

What this practically means

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Executive summary

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The Petitioner, Okiya Omtatah Okoiti, filed a Petition and Notice of Motion on 28th August 2019 challenging the appointment of National Land Commission Commissioners. The Respondents and the 1st and 8th Interested Parties raised preliminary objections: that the ELRC lacked jurisdiction because there is no employer-employee relationship with Commissioners; that the Petitioner lacked locus standi; that the matter was premature under the doctrine of ripeness; that the Court could not interfere in active parliamentary proceedings; and that the Interested Parties had been joined without leave. The parties filed written submissions which they highlighted in open Court. The Court framed three issues: the Petitioner's locus standi, whether the application succeeds, and costs. On jurisdiction, the Court applied the multifactorial employment test from Halsbury's Laws of England and held that NLC Commissioners' positions fall squarely within the definition of an employee, so the Court had jurisdiction under Article 162(2) of the Constitution. On locus, the Court held that Article 22 grants every person the right to institute such a Petition, including in the public interest. However, on the merits, the Court found that under Sections 6(9) and 7 of the Public Appointments (Parliamentary Approval) Act, the Petitioner still had an opportunity to raise his issues before the Parliamentary Committee, and had therefore not exhausted that process. Applying the doctrines of ripeness, exhaustion and separation of powers, and the principle of avoidance, the Court declined to interfere with the ongoing parliamentary process, though it expressly confirmed its jurisdiction and the Petitioner's locus. On costs, considering the public interest in the custody of public land, the Court ordered that each party bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over appointment of NLC Commissioners

Holding

The Court had jurisdiction because the Commissioners' positions fall within the definition of an employee relationship

Reasoning

Applying Halsbury's multifactorial test of employment, the Court found that NLC Commissioners have an obligation to work only for one employer, with provisions governing how they work, may be removed and paid, placing them within a would-be employee definition. The appointment of such Commissioners is therefore a matter within the Court's jurisdiction under Article 162(2).

p. 5
02

Locus standi of the Petitioner

Holding

The Petitioner has locus standi under Article 22 of the Constitution

Reasoning

Article 22(1) grants every person the right to institute court proceedings claiming a violation of a right or fundamental freedom, and Article 22(2)(c) permits a person acting in the public interest. To deny the Petitioner locus is therefore to miss the point; he is rightly before the Court.

p. 6
03

Ripeness and exhaustion of the parliamentary approval process

Holding

The Court declined to entertain the substantive issues as premature

Reasoning

Section 6(9) of the Public Appointments (Parliamentary Approval) Act allows any person to provide the Clerk with sworn evidence contesting a nominee's suitability before the approval hearing, and Section 7 empowers Parliament to consider the appointment procedure. Since the Petitioner could still raise his issues before the Parliamentary Committee, he had not exhausted the process and the matter was not ripe.

p. 6
04

Separation of powers

Holding

Judicial restraint was exercised in deference to the active parliamentary process

Reasoning

Relying on the Supreme Court's principles in Justus Kariuki Mate v Martin Nyaga Wambora, the Court noted that each arm of government must recognise the independence of the others and that courts should be guided by restraint, intervening only in requisite instances. This supported the decision to defer to the ongoing parliamentary vetting.

p. 4

Legal principles established

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  • Under Article 162(2) of the Constitution, the ELRC has jurisdiction over any matter relating to employment and labour relations, including appointments to constitutional commissions where the engagement bears the character of employment
  • There is no single test for determining whether a person is an employee; the modern approach is to balance all relevant factors including control, integration, method of payment and who bears the risk of loss
  • Article 22 of the Constitution grants every person the right to institute proceedings claiming a Bill of Rights violation, including in the public interest
  • A court will not determine a constitutional question where there is some other basis upon which the question could have been determined (doctrine of avoidance/ripeness)

Court orders

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  1. 1.The Court declared that it has jurisdiction to entertain the Petition
  2. 2.The Court declared that the Petitioner has locus standi and is rightly before the Court
  3. 3.The Court declined to delve into the issues raised at the moment, holding the Petition premature by virtue of the doctrine of ripeness and exhaustion, leaving the Petitioner to raise his issues before the Parliamentary Committee
  4. 4.Each party to bear its own costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; Petition filed under Article 22 of the Constitution

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, "Okoiti v Selection Panel for the National Land Commission & 3 others; Bw’omanwa & 7 others (Interested Parties) [2019] KEELRC 752 (KLR)", Case Analysis (2019). Petition (ELRC, Nairobi) filed 28th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/752/eng@2019-09-24

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