Okoiti v Attorney General & 2 others; Muthaura & 4 others (Interested Parties) (Petition 47 of 2018) [2019] KEELRC 1411 (KLR)
The bottom line
#Kenya's Employment Court upheld President Kenyatta's 2018 KRA Board appointments as lawful emergency appointments, but ruled ordinary state board jobs must follow competitive, merit-based recruitment.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC and sub judice
The Court has jurisdiction; the doctrine of res sub judice does not apply because the parties, cause of action and reliefs in the present petition differ from those in High Court Constitutional Petition No. 331 of 2016.
The Court distinguished the 2016 petition: different petitioners, different interested parties, and a fresh 2018 cause of action arising from the revocation and fresh appointments to the KRA Board. On jurisdiction, following Mugendi and its own precedents, the Court held that board members of state corporations are public officers employed within a constitutional and statutory framework, so the dispute relates to public service employment within section 12 of the ELRC Act.
Constitutionality of sections 7(3), 26 and 27(c) of the State Corporations Act and sections 6(2)(a) & (e) of the KRA Act
None of the impugned provisions is unconstitutional; they are consistent with Articles 132(4)(a), 234(2)(a) and 249(2)(a) and capable of constitutional application.
The Court held that Parliament may legislate on matters auxiliary to the Commission's appointment powers and may vest appointment functions elsewhere. Section 7(3) is a remedial or emergency measure confined to failure of a board to act in the national interest, consistent with Articles 47 and 236. The State Corporations Advisory Committee's advisory role does not encroach on the Commission's functions. The provisions contain no inherently unconstitutional content.
Whether the impugned appointments were unconstitutional for want of competitive, merit-based recruitment
The appointments of the 1st to 5th interested parties were lawful because they were temporary, remedial appointments under section 7(3) of the State Corporations Act vested in the President's statutory discretion; normal appointments must, however, comply with Articles 10, 73 and 232 and the Public Service Commission Act, 2017 criteria.
The Court treated section 7(3) as an exception to the general appointment regime, upholding lex specialis derogate legi generali. For ordinary appointments, the Public Service Commission Act, 2017 criteria (merit, advertisement of vacancies) apply until Parliament enacts specific procedures. The Court also invoked the Ndegwa Commission Report and the Mwongozo Code as reflecting the constitutional aspiration of merit-based, transparent board appointments.
Compliance with Article 135 (seal and signature of the President)
The gazette notices are mere notifications and not the instruments of decision; there being no material on the instruments of appointment, a presumption of compliance with Article 135 was drawn.
Following Hassan Ali Joho and Mumo Matemu, the Court held that a gazette notice does not constitute the instrument of the decision it notifies. Since the appointments had taken effect and no evidence of the actual instruments of appointment was placed before the Court, no finding of violation of Article 135 could be made and a balance-of-probabilities presumption of compliance applied.
Whether retroactive appointments offended the law
The retroactive appointments were not unlawful; no provision barring retroactive appointments was identified and no evidence of affected Board decisions was adduced.
The petitioner did not identify any legal provision prohibiting backdating. Section 35 of the Public Service Commission Act, 2017 permits the effective date of appointment to be the date of the decision or such date as the appointing authority may determine. The Court found no evidence of the Board decisions alleged to have been nullified by the backdating.
Legal principles established
#- The ELRC's jurisdictional compass is the subject matter of employment and labour relations, not the remedies sought or the capacity in which a party sues; the jurisdiction extends to all constitutional issues arising in such disputes.
- Public officers, regardless of rank or designation, are servants of the people and not of each other; there are no masters and servants in the public service under the Constitution of Kenya, 2010.
- A statutory provision capable of being applied constitutionally, and not inherently containing unconstitutional content, cannot be struck down merely because in a particular instance it was applied unconstitutionally.
- Under Article 234(2)(a) read with Article 249(2)(a), Parliament may by legislation limit, condition or take over the Public Service Commission's appointment functions where the legislation is consistent with the Constitution.
- Normal (non-remedial) appointments under section 6(2)(a) and (e) of the Kenya Revenue Authority Act must comply with Articles 10, 73 and 232, and, absent specific legislation, the Public Service Commission Act, 2017 criteria for appointments and mandatory advertisement of vacancies apply.
Court orders
#- 1.Dismissal of the preliminary objections filed for the respondents
- 2.Declaration that sections 7(3), 26 and 27(c) of the State Corporations Act (Cap. 446) and sections 6(2)(a) & (e) of the Kenya Revenue Authority Act (Cap. 469) are not unconstitutional, being in line with Articles 132(4)(a), 234(2)(a) and 249(2)(a) of the Constitution
- 3.Declaration that normal appointments under sections 6(2)(a) and (e) of the Kenya Revenue Authority Act shall comply with the criteria prescribed in Articles 232, 73 and 10 of the Constitution and, absent specific parliamentary procedures, the provisions of the Public Service Commission Act, 2017 on criteria for appointments and advertisement of vacancies shall apply to normal appointments to boards of state corporations
- 4.Declaration that the appointments of the 1st to 5th interested parties to the Board of the Kenya Revenue Authority were lawful as temporary and remedial appointments by the President under sections 6(2)(a) and (e) of the Kenya Revenue Authority Act pursuant to section 7(3) of the State Corporations Act
- 5.Respondents to jointly or severally pay the petitioner's 50% costs of the proceedings, the other parties to bear own costs
- Jurisdiction invoked
- Articles 162(2)(a) and 165(5) and (6) of the Constitution as read with Articles 22(1) and 258(1) and the Employment and Labour Relations Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Attorney General & 2 others; Muthaura & 4 others (Interested Parties) (Petition 47 of 2018) [2019] KEELRC 1411 (KLR)", Case Analysis (2019). Constitutional Petition (ELRC, Nairobi, filed 29.05.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1411/eng@2019-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.