Okoiti v National Executive of the Republic of Kenya & 9 others (Petition 235 of 2019) [2020] KEELRC 749 (KLR)
The bottom line
#Kenya's Employment Court upheld the Controller of Budget's appointment but ordered Parliament to fix a legal gap in how the office's vacancies are filled.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and locus standi
The Court had jurisdiction: the dispute concerns employment of the Controller of Budget and interpretation of constitutional and statutory provisions on that employment; Article 251 removal procedures were not implicated; and the petitioner, an undisputed public-spirited citizen, had standing under Article 258(1).
The Court rejected the distinction between 'ordinary' and 'not ordinary' employment as alien to the law, holding that state and public officers are servants of the people and their engagement is employment regardless of special constitutional procedures. The preliminary objection founded on Article 251 failed because the petitioner sought judicial review of the appointment process, not removal. Standing under Article 258(1) was not disputed.
Applicability of section 4(2) of the Controller of Budget Act to a vacancy arising on lapse of term
Section 4 was properly invoked despite the drafting lacuna: by purposive interpretation and the doctrine of necessity, the section applied to a vacancy flowing from the lapse of the 8-year term, but Parliament should amend it for clarity.
All parties accepted the section did not expressly cover expiry of the 8-year tenure. The Court found Parliament intended a procedure for filling any vacancy; given the crucial functions of the office and the harm of leaving it unfilled, necessity justified invoking section 4(2). The Court adopted a purposive approach reading the section within its constitutional context and directed respondents to consider a curing enactment.
Constitutionality of sections 4(5), 4(6) and 7 of the Controller of Budget Act
The impugned provisions are constitutional: they were enacted pursuant to Article 234(2)(j) and Article 250(2)(a), do not inherently violate any constitutional provision, and section 7's acting-appointment mechanism carries adequate safeguards consistent with Article 259(3)(b).
The committee's composition and the PSC's role are within Parliament's legislative powers under Article 234(2)(j); the President's nomination role under Article 228(1) is unaffected. Section 7 creates no parallel office; it merely designates an acting holder under safeguards (seniority, 90-day limit, minimum qualifications, full powers), and Parliament's enactment itself constitutes advance legislative approval satisfying Article 228(1).
Judicial review of the recruitment, vetting, approval, appointment and swearing-in of the 6th respondent
The petitioner established no case on procedure or merits; the allegations against the Chief Justice were unsupported, and the process was substantially lawful. The Court declined to assess the 6th respondent's qualifications because the National Assembly vetting forum was never invoked.
On merits, the Court held that questions about the suitability of committee members and the candidate's qualifications fell for determination by the National Assembly committee under the Public Appointments (Parliamentary Approval) Act, which received no memoranda. Under the justiciability doctrine and the exhaustion principle, the petitioner's failure to use that forum barred judicial intervention; on the material before the Court the process was substantially compliant.
Legal principles established
#- The appointment of constitutional and state officers is employment within the ELRC's jurisdiction notwithstanding the independent status of the office; the master-servant test does not govern public service employment under the 2010 Constitution
- Independence of a constitutional office does not oust the High Court's/ELRC's jurisdiction to review the legality and manner of exercise of its statutory powers
- Where a statutory vetting forum is available to challenge a public appointment and is not invoked, the court will decline to delve into the merits under the doctrine of justiciability
- A statute enacted to give effect to a constitutional provision is constitutional unless its content inherently violates a constitutional provision or rule
- Article 259(3)(b) of the Constitution contemplates acting appointments to public offices, and Parliament's prior statutory prescription of the acting designation constitutes legislative approval of the person the President may designate
Court orders
#- 1.Declaration that the 1st, 2nd, 3rd and 5th respondents to forthwith consider an enactment to improve and fill the apparent and established lacuna in section 4(1) of the Controller of Budget Act, 2016 so as to expressly provide for a vacancy arising on lapsing of the prescribed 8-year tenure, and as may be appropriate a procedure for timely transparent and competitive recruitment timed to the foreseeable lapsing of the incumbent's term
- 2.The 1st, 2nd, 3rd and 5th respondents to jointly or severally pay the petitioner's 50% of the costs of the petition and all other parties shall bear own costs of the proceedings
- Jurisdiction invoked
- Articles 162, 165(5)(b), 23, 258(1) and 259(1) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v National Executive of the Republic of Kenya & 9 others (Petition 235 of 2019) [2020] KEELRC 749 (KLR)", Case Analysis (2020). Petition (number not stated in judgment as reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/749/eng@2020-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.