Okiya Omtatah Okoiti v National Executive of the Republic & 6 others [2019] KEELRC 1817 (KLR)

The 5th to 7th respondents were appointed under section 6(1)(a) and (k) of the Hospital Order, 2019. The Court found these to be public offices within the public service under Article 260. Applying its earlier jurisprudence that the jurisdictional test is the subject matter (employment and labour relations) rather than remedies or procedure, and that public officers are servants of the people rather than masters and servants of each other, the Court held the petition properly before it.

The Hospital is not excluded from the Public Service Commission's functions under Article 233(3), but section 3(1) of the State Corporations Act (pre-2010 law continued under section 7(1) of the Sixth Schedule) confers power on the President to establish state corporations by Order. The Court held Parliament may legislate specifically on office creation and appointment, displacing Article 234(2)(a) functions, and such legislation stands until declared unconstitutional. Since the statute and Order were unchallenged and not obviously unconstitutional, the President and Cabinet Secretary acted in good faith and the appointments should be allowed to rest pending full hearing.

The Court held that the 5th respondent's qualification to hold public office is a matter of fact requiring her to be heard before final determinations, consistent with fair hearing principles. It noted that the legislation implementing Chapter Six on Leadership and Integrity, including the Public Officer Ethics Act, the Ethics and Anti-Corruption Commission Act and the Leadership and Integrity Act, would have sufficient provisions to address any alleged lack of integrity. Alleged unconstitutionality or unlawfulness of the appointments could be remedied after the full hearing.