Republic v Isaack Kipyegon Koech & 4 others Ex Parte Kipkirui Koech [2020] KEELRC 573 (KLR)
The bottom line
#A Kericho court upheld an Assistant Chief's appointment, confirming that Kenyan authorities can lawfully recruit under delegated Public Service Commission authority.
What this practically means
#Executive summary
#Key legal issues
#Validity of the advertisement under section 37(1) of the Public Service Commission Act
The advertisement was valid; the authorised officer may advertise through the website, a daily newspaper, radio or other modes of communication, and the notice placed by the 3rd respondent, which reached the applicant, satisfied the provision
Section 37(1) permits advertisement through the Commission's website, at least one daily newspaper of nationwide coverage, the radio and other modes of communication. The court found the applicant himself applied after seeing the notice and was invited to interview on 17th July 2018, which demonstrated that the notice reached potential applicants. The respondents' unchallenged evidence showed the vacancy was circulated within the sub-county, where residency was a requirement. The advertisement therefore met the statutory threshold and the 'silent advert' allegation was unfounded.
Whether the recruitment was conducted by unauthorised persons without written delegation
The PSC's delegated authority to the authorised officers was constitutional and unchallenged; the recruitment was lawful
Article 234(5) permits delegation in writing, and section 2 of the Public Service Commission Act defines an authorised officer as one appointed by the Commission to perform delegated functions. Dr Kibicho's sworn averment that delegation existed was not challenged by the applicant. Relying on the ex parte Daniel Chacha decision, the court held the delegation was constitutional. The Omtatah decision was applied to show Parliament may legislate on recruitment and selection procedures auxiliary to Article 234.
Alleged breach of natural justice and Article 47 (fair administrative action)
No breach established; the applicant applied, was shortlisted, invited and interviewed, so the process was transparent and fair
The applicant's own documents showed he applied and received an invitation letter through the chief's office, contradicting his claim that he learnt of the process through friends. The respondents' evidence showed all invited candidates signed a delivery book, a panel scrutinised 22 applicants, interviewed 10, and recommended the best three to the appointing authority. Allegations of bias, corruption and unfair advantage were speculative and unsupported. The court declined to re-evaluate the merit ranking, as that is outside judicial review.
Legal principles established
#- Under Article 234(5) of the Constitution the Public Service Commission may delegate, in writing, its functions and powers to any officer, body or authority in the public service, and appointments made by such authorised officers are lawful
- The merits of a selection decision are not a matter for judicial review, which concerns only the lawfulness of the process
- Judicial review does not examine evidence to determine substantial merits but only compliance with constitutional, statutory and procedural requirements
Court orders
#- 1.Interim orders issued in the proceedings vacated
- 2.The judicial review application by the ex parte applicant dismissed
- 3.Costs awarded to the 2nd, 3rd, 4th and 5th respondents
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court (Constitution Article 234 and Public Service Commission Act, section 37 raised as governing law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaack Kipyegon Koech & 4 others Ex Parte Kipkirui Koech [2020] KEELRC 573 (KLR)", Case Analysis (2020). Judicial Review Application No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/573/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.