Okoiti v Nairobi Metropolitan Service & 3 others; Badi & 9 others (Interested Parties) (Petition 52 of 2020) [2020] KEELRC 869 (KLR)
The bottom line
#The court declared the Nairobi Metropolitan Services illegally created, but gave the government 90 days to fix the problem instead of shutting it down.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the Petition
The Court held it had jurisdiction because the dispute concerned the appointment and secondment of employees from one government entity to another and the legality of the secondment process, matters squarely within employment and labour relations
Section 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act confer exclusive jurisdiction over employment and labour disputes. The issues concerned 6,052 employees seconded and chief officers deployed, and the legal status of their new employer, so the disputes fell within the Court's jurisdiction despite the preliminary objection.
Locus standi of the Petitioner
The Petitioner had locus standi under Article 22(1) which permits every person to institute proceedings alleging violation of rights
Article 22(1) grants every person the right to institute court proceedings claiming a denial, violation or infringement of a right or fundamental freedom. The objection that the Petitioner lacked a nexus to the parties he sought to protect failed, and the Petitioner as a public interest litigant had standing.
Legal status of the Nairobi Metropolitan Services
The NMS was not legally established; no instrument of its establishment was presented before the Court
Although the President may establish offices in the public service under Article 132(4)(a) on the recommendation of the Public Service Commission, the establishment must follow the law. The Gazette Notice dated 25th February 2020 was the Deed of Transfer of functions and did not create the NMS. No instrument establishing the NMS was produced, so its legal status was unestablished at the time of filing.
Deployment of the 1st to 9th Interested Parties
The deployment was done in contravention of the law and the Constitution as the proper deploying bodies did not deploy them with stated terms
The Court found the 1st to 9th Interested Parties were not appointed but deployed or seconded serving officers. The deployment should have been done by either the County Public Service Board or the Public Service Commission stating terms and conditions of their secondment/deployment status; this process was overlooked and contravened the law and the Constitution.
Secondment of 6,052 county employees
Consultation between the PSC and the County Public Service Board took place, but the secondment by the PSC itself was illegal, null and void as it should have been carried out by the County Public Service Board
Evidence showed an instrument facilitating secondment signed on 18/3/2020 between the Chairpersons of the PSC and the County Public Service Board, so consultation occurred as envisaged by the Deed of Transfer. However, under Section 59 of the County Governments Act staffing matters including secondment belong to the County Public Service Board, and the PSC had no capacity to second county staff, rendering the secondment null and void.
Remedies - suspension of declaration of invalidity
The declaration of illegality was suspended for 90 days to allow lawful establishment of the NMS and proper secondment, applying the principle of suspended invalidity from South African and Canadian jurisprudence
Comparative jurisprudence permits suspending a declaration of invalidity to allow correction of defects, guided by caution to preserve constitutional supremacy and prevent undue hardship. Since Parliament had allocated funds, staff were deployed and services were being rendered, immediate invalidation would cause confusion and loss of services to over 4 million Nairobi residents.
Legal principles established
#- Where an entity is established without a legal instrument of establishment, it has no legal status; a public office must be established in accordance with the law with a proper instrument of establishment
- A transfer of county functions to the national government must involve the entire county government, including the county assembly, not merely the Governor
- The Public Service Commission has no legal capacity to deploy or second county government staff to the national government; secondment of county staff is a function of the respective County Public Service Board
- A court may suspend a declaration of constitutional invalidity to allow a competent authority to correct the defect, guided by the need to protect the supremacy of the Constitution and prevent undue hardship
Court orders
#- 1.A declaration that the creation of the Nairobi Metropolitan Services was done in violation of the Law and the Constitution
- 2.A declaration that the deployment and secondment of the 1st to 9th Interested Parties was done in contravention of the Law and the Constitution
- 3.A declaration that the secondment of the 6052 staff to the Nairobi Metropolitan Services was done with consultation between the Public Service Commission and the County Public Service Board but was in contravention of the County Government Act
- 4.Suspension of the declaration of illegality for a period of 90 days within which the 1st Respondent should be established by law and an instrument of its establishment made
- 5.The issue of secondment and deployment of staff to be addressed and proper secondment/deployment letters issued by the authority responsible
- 6.Any party free to apply in default of compliance within 90 days
- 7.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Nairobi Metropolitan Service & 3 others; Badi & 9 others (Interested Parties) (Petition 52 of 2020) [2020] KEELRC 869 (KLR)", Case Analysis (2020). Petition No 52 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/869/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.