Okoiti v President of Kenya & 4 others (Petition 19 of 2016) [2019] KEELRC 2570 (KLR)
The bottom line
#Kenya's Employment Court ruled that the President cannot handpick state corporation board members — future appointments must be open, competitive and merit-based.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over presidential appointments of state corporation board members
The Court found jurisdiction because board chairpersons and members earn wages and can be treated as employees of the government.
Section 12(1) of the ELRC Act confers exclusive jurisdiction over employment and labour relations disputes under Article 162(2). Section 2 of the Employment Act defines an employee as a person employed for wages or salary. Board chairpersons and members earn retainer fees, so appointments to public offices where appointees are paid wages are employment-related, giving the Court jurisdiction over issues surrounding such appointments.
Whether the appointments violated the Constitution
The Court agreed that Articles 10, 27 and 232 of the Constitution were violated by unilateral hand-picking of board appointees.
Drawing on the doctrine of pleasure as discussed in CA No. 2/2015 (Visram, Koome and Odek JJA) and the rejection of unfettered discretion in Wade & Forsyth, the Court held appointments must be transparent and not arbitrary. Since board members serve the public with resources drawn from taxes, appointments must comply with public law, governance and policies under Article 10, and the values of fair competition, merit and equality under Articles 27 and 232 were violated by hand-picking.
Whether previous appointments should be declared null and void and quashed
The Court declined to nullify past appointments on proportionality grounds but directed that future appointments comply with the Constitution and be fair, open, competitive, merit-based and inclusive.
Applying proportionality, the Court weighed the Petitioner's individual rights against the interests of the wider Kenyan community. Government corporations serve a large role in the economy; setting aside existing appointments would have grievous ripple effects on the economy and the running of those bodies and on employees already serving. The Court therefore granted only prospective relief.
Legal principles established
#- The President cannot simply handpick persons and appoint them as Chairpersons and Board Members of State Corporation Boards; appointments must be transparent and not arbitrary
- Appointments of board chairpersons and members who are paid wages are employment-related and fall within the ELRC's jurisdiction
- The doctrine of pleasure has evolved so that no authority may act arbitrarily; discretionary powers must be exercised reasonably and for the public good
Court orders
#- 1.An order that future appointments to Boards of State Corporations should be based on the law, on the Constitution and should be fair, open, competitive, merit based and through an inclusive process.
- 2.There will be no order as to costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12(1) of the ELRC Act 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v President of Kenya & 4 others (Petition 19 of 2016) [2019] KEELRC 2570 (KLR)", Case Analysis (2019). Petition of 1st March 2016 (Amended Petition filed 28th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2570/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.