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ELRCPartially AllowedNotice of Motion dated 29th July, 2020 (in Petition of 18th June, 2020 judgment)· [2020] KEELRC 512 (KLR)

Okiya Omtatah Okoiti v Nairobi Metropolitan Service & 3 others; Mohamed Abdala Badi & 9 others [2020] KEELRC 512 (KLR)

Employment and Labour Relations Court of Kenya
17 September 2020
HWHellen Wasilwa
4,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The court confirmed the Nairobi Metropolitan Services was legally created, lifted its earlier illegality finding, and ruled it can still supervise compliance despite a pending appeal.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (Wasilwa J) determined a Notice of Motion dated 29th July 2020 filed by the Nairobi Metropolitan Services and allied state actors seeking declarations that the creation of the Nairobi Metropolitan Services and the deployment and secondment of staff to it complied with the law, and that the order of unconstitutionality issued on 18th June 2020 be lifted. The 10th Interested Party and the Petitioner opposed, arguing functus officio, res judicata and abuse of process given a pending appeal. The court framed four issues: functus officio, propriety of the applicants' presence, jurisdiction, and the orders grantable. It held that although functus officio prevents merit-based re-engagement with a decided case, paragraph 131 of the 18th June 2020 judgment expressly retained the court's supervisory jurisdiction to check implementation of its directions during the 90-day window; the applicants were therefore properly before the court, and the pending Court of Appeal application did not oust jurisdiction absent any stay order. On the merits of compliance, the court examined Hansard reports, order papers and the ad hoc committee report, finding the Nairobi County Assembly was consulted and public participation held in all 17 sub-counties, so Article 176(1) was not breached. The Executive Order No. 3 of 2020 issued under Article 132(4)(a) anchored the establishment of the NMS. The court lifted the declaration of illegality, upheld the deployment of the 1st to 9th Interested Parties, and found the secondment of 6052 county employees was approved by the Nairobi County Public Service Board, directing that secondment letters be actioned if not written. There was no order of costs.

Key legal issues

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01

Whether the court was functus officio after its 18th June 2020 judgment

Holding

The court was not functus officio; it retained jurisdiction to check implementation of the directions given within the 90-day window, without rewriting the judgment.

Reasoning

Relying on the Telecom (K) Ltd formulation, the judge held that functus officio bars only merit-based re-engagement. Paragraphs 129 and 131 of the judgment expressly kept the matter alive for review of implementation of directions within 90 days. The applicants were therefore entitled to return to court to demonstrate compliance without that amounting to reopening the case on the merits.

p. 5
02

Whether the applicants were properly before the court and whether the court had jurisdiction given the pending appeal

Holding

Yes; any party was free to apply under paragraph 131 of the judgment, and no order from the Court of Appeal barred the court from proceeding.

Reasoning

The applicants were not seeking review under Order 45 but to demonstrate compliance with directions, which the judgment permitted. The pendency of Civil Application No. 192 of 2020 (Nairobi) seeking stay did not oust the court's jurisdiction absent any restraining order from the Court of Appeal.

p. 5
03

Whether establishment of the Nairobi Metropolitan Services complied with the Constitution and law

Holding

The County Assembly was involved in the transfer of functions, so Article 176(1) was not breached, and the instrument establishing the NMS under Article 132(4)(a) was exhibited; the declaration of illegality was lifted.

Reasoning

The Hansard, order papers and ad hoc committee report showed the Speaker notified the Assembly, an ad hoc committee studied the Deed of Transfer, public participation occurred in all 17 sub-counties, and the Assembly adopted the report and the Deed. The Executive Order No. 3 of 2020 and Gazette Notice were produced, anchored on Articles 132(4)(a) and 234(2)(a)(i) and Section 30 of the Public Service Commission Act.

p. 6
04

Whether deployment and secondment of staff to the NMS complied with the law

Holding

Deployment of the 1st to 9th Interested Parties was lawful; secondment of the 6052 county employees was done with the approval of the Nairobi County Public Service Board, though secondment letters must be actioned if not written.

Reasoning

The court noted its judgment had already acknowledged consultation with the County Public Service Board. The status of the 1st to 9th Interested Parties as Public Service Commission officers was not explained in the initial proceedings, and the court declined to revisit it, holding that redeployment by their employer, the Public Service Commission, would be in order.

p. 7

Legal principles established

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  • Functus officio bars merit-based re-engagement with a decided case but does not bar a court from monitoring implementation of its own directions.
  • A court retains jurisdiction to supervise compliance with directions issued in its own judgment, including where an appeal is pending absent any stay order from the appellate court.

Court orders

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  1. 1.The declaration of illegality of the Nairobi Metropolitan Services as created is lifted
  2. 2.A declaration that the deployment and secondment of the 1st to 9th Interested Parties was done within the correct framework of the law
  3. 3.A finding that the secondment of the 6052 staff from the Nairobi County Public Service Board was done with the approval of the Nairobi County Public Service Board, and that if secondment letters were not written they should be actioned
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 132(4)(a)
  • Constitution of Kenya, 2010Article 187
  • Constitution of Kenya, 2010Article 176(1)
  • Constitution of Kenya, 2010Article 234(2)(a)(i)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 164(3)(b)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Intergovernmental Relations Act (No. 2 of 2012)Section 26(4) and (5)
  • Public Service Commission ActSection 30
  • County Government Actnot specified
  • Civil Procedure RulesOrder 45 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013not specified

Cases cited (2)

  • Telecom (K) Limited vs John Ochanda suing on his own behalf and on behalf of 996 of former employees of Telecom (K) Limited
    (2014)
  • Mitu-Bell Welfare Society vs Attorney General & 2 Others
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Court continuing jurisdiction under its judgment of 18th June, 2020 (paragraph 131)

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 Nairobi Metropolitan Service & 3 others; Mohamed Abdala Badi & 9 others [2020] KEELRC 512 (KLR)", Case Analysis (2020). Notice of Motion dated 29th July, 2020 (in Petition of 18th June, 2020 judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/512/eng@2020-09-17

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