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ELRCDismissedELRC Petition 104 of 2020 (interlocutory ruling; petition and notice of motion dated 26.06.2020 filed 29.06.2020)· [2020] KEELRC 340 (KLR)

Okiya Omtatah Okoiti v Ismail Fahmy M. Shaiye; Board of Trustees,Water Sector Trust Fund (Intended Interested Party) [2020] KEELRC 340 (KLR)

Employment and Labour Relations Court
16 October 2020
BOByram Ongaya
4,508 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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Omtatah lost his bid to bar the Water Sector Trust Fund CEO from office because he first had to exhaust internal grievance procedures before going to court.

What this practically means

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Executive summary

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In this interlocutory ruling of the Employment and Labour Relations Court at Nairobi, Justice Byram Ongaya determined three applications arising from a dispute over the office of Chief Executive Officer of the Water Sector Trust Fund. The petitioner, Okiya Omtatah Okoiti, sought a temporary order of prohibition barring the respondent, Ismail Fahmy Shaiye, from accessing the CEO's office, after the interested party's board chairman sent him on terminal and annual leave pending the expiry of his second and final term on 09.11.2020. The respondent opposed, contending the chairman acted unilaterally without a valid board resolution, that the special meeting of 23.06.2020 never took place, and that the petitioner lacked standing. Both respondent and interested party filed preliminary objections on standing, jurisdiction and pleadings, and the interested party applied to expunge documents allegedly obtained unlawfully without an application under section 8 of the Access to Information Act. The court held that section 8 is not the exclusive means of accessing public information, that the documents were in the public domain through related proceedings, and dismissed the expungement application. On jurisdiction, the court found leave and reappointment are human resource functions within its exclusive mandate, and that jurisdiction extends to non-parties to the employment contract. The petitioner's standing was upheld under Article 258(2)(c), applying Trusted Society of Human Rights Alliance. However, the interim relief failed: no prima facie case was established since the respondent remained in employment, the disputed letter only placed him on leave, and the grievance procedure had not been exhausted. All applications and preliminary objections were dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether documents obtained without an application under section 8 of the Access to Information Act must be expunged

Holding

The application to expunge failed; the documents were in the public domain through related proceedings and no illegality was established

Reasoning

The interested party argued the petitioner obtained documents illegally for want of a section 8 application. The court held section 8 is a mechanism for those otherwise unable to access information, not an exclusive procedure. Many documents were already public, exhibited in related cases (ELRC JR 64 of 2020 and ELRC Petition 98 of 2020). Order 19 rule 6 grounds for striking out (scandalous, irrelevant, oppressive) were not established.

p. 5
02

Whether the ELRC has jurisdiction over a dispute between non-employer parties concerning a CEO's term and leave

Holding

The court has jurisdiction; leave and reappointment are human resource functions squarely within the court's mandate under Article 162(2)(a), Article 165(5)(b) and section 12 of the ELRC Act

Reasoning

Although the dispute concerned a board-appointed CEO and was brought by a third party, section 12(2) permits a complaint against an employee, and the jurisdiction extends to employment disputes by or against persons not party to the contract of service. Leave and reappointment are human resource matters within the court's exclusive jurisdiction.

p. 5
03

Whether the petitioner had locus standi under Articles 22 and 258

Holding

Standing established under Article 258(2)(c) as the petitioner acted in the public interest concerning a public office, following Trusted Society of Human Rights Alliance

Reasoning

The respondent and interested party alleged the petitioner was litigating for the removed board chairman. The court found the dispute concerns a public office regulated by constitutional, statutory and policy provisions, that the petitioner pleaded violations of Articles 27 and 47, and that the general public has a stake in the renewal of tenure of the CEO of a state corporation, satisfying the public-interest test.

p. 5
04

Whether the petitioner established a prima facie case for the interim prohibition order

Holding

No prima facie case; the application was declined

Reasoning

The respondent's contract ran to 09.11.2020 and he remained an employee. The disputed Chairman's letter placed him on leave but did not bar access to the CEO's office. The grievance management procedure under clause 17.2 of the Human Resource Policies and Procedures Manual had not been invoked or exhausted. Without a prima facie case with likelihood of success, the interlocutory relief failed.

p. 6

Legal principles established

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  • Section 8 of the Access to Information Act is not the exclusive procedure for accessing public information; mere absence of an application under it does not establish illegal obtainment of documents
  • The ELRC's jurisdiction under section 12(2) of the Employment and Labour Relations Court Act spreads to disputes about employment even by or against persons who are not parties to the contract of service
  • A petitioner acting in the public interest concerning a public office has standing under Article 258(2)(c) of the Constitution
  • A preliminary objection based on want of pleadings collapses where the pleadings clearly disclose a constitutional violation

Court orders

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  1. 1.The application to expunge documents dated 28.07.2020 filed for the interested party is dismissed
  2. 2.The preliminary objections filed for the respondent and the interested party are dismissed
  3. 3.The petitioner's notice of motion dated 26.06.2020 is dismissed (no temporary order of prohibition issued)
  4. 4.Each party to bear their own costs of the applications and preliminary objections

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 4(2), 10, 20, 22, 23(3), 25, 27(1)&(2), 35(1)(a)&(b), 47(1), 50(1), 159(2)(d), 162(2)(a), 165, 165(5)(b), 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(2) & (8), 19, 24
  • Water Act, 2016 (No. 43 of 2016)Section 118; 1st Schedule
  • State Corporations Act (Cap 466)Section 5(3); section 27(1)(c)
  • Access to Information Act, 2016Sections 4 and 8
  • Employment and Labour Relations Court Act, 2011Section 12(1) and 12(2)
  • Civil Procedure RulesOrder 19 rule 6

Cases cited (1)

  • Trusted Society of Human Rights Alliance –Versus- Nakuru Water and Sanitation Services Company & Another
    [2013] eKLR
Jurisdiction invoked
Article 162(2)(a) and Article 165(5)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okiya Omtatah Okoiti v Ismail Fahmy M. Shaiye; Board of Trustees,Water Sector Trust Fund (Intended Interested Party) [2020] KEELRC 340 (KLR)", Case Analysis (2020). ELRC Petition 104 of 2020 (interlocutory ruling; petition and notice of motion dated 26.06.2020 filed 29.06.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/340/eng@2020-10-16

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