Okoiti v Selection Panel for the National Land Commission & 3 others; Bw’omanwa & 7 others (Interested Parties) [2019] KEELRC 752 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over appointment of NLC Commissioners
The Court had jurisdiction because the Commissioners' positions fall within the definition of an employee relationship
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).
Locus standi of the Petitioner
The Petitioner has locus standi under Article 22 of the Constitution
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.
Ripeness and exhaustion of the parliamentary approval process
The Court declined to entertain the substantive issues as premature
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.
Separation of powers
Judicial restraint was exercised in deference to the active parliamentary process
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.
Legal principles established
#- 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
#- 1.The Court declared that it has jurisdiction to entertain the Petition
- 2.The Court declared that the Petitioner has locus standi and is rightly before the Court
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.