Okiya Omtatah Okoiti v Cabinet Secretary for Information,Communications and Technology & 3 others;Patricia Kimama & 5 others (Interested Parties) [2020] KEELRC 1122 (KLR)
The bottom line
#Kenya's Employment Court upheld the ICT Cabinet Secretary's power to re-appoint Communications Authority board members, confirming re-appointment doesn't need fresh recruitment.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cabinet Secretary could lawfully re-appoint the Interested Parties after the expiry of their terms
Yes. Section 51 of the Interpretation and General Provisions Act confers power to re-appoint unless a contrary intention appears, and section 58 requires the act to be done without unreasonable delay where no timeline is prescribed.
The KICA sets no timeline for re-appointment of independent Board members. Section 51 of the Interpretation and General Provisions Act empowers re-appointment unless a contrary statutory intention appears, and section 58 obliges action without unreasonable delay. The Respondents' explanation - staggering appointments to ensure continuity under the first schedule to KICA - was not shown to be unreasonable. Statutory language and legislative intention triumph over the dictionary meaning of re-appointment.
Whether re-appointment after expiry of term requires fresh competitive recruitment
No. The parties agreed, in line with emerging jurisprudence, that persons on a re-appointment list need not undergo fresh rigorous recruitment.
Counsel agreed that re-appointment does not require a fresh competitive process. The Respondents relied on authority including Peter Muigai v Cabinet Secretary for Industrialisation and Enterprise Development to that effect. Performance evaluations of the Interested Parties were carried out and they were found fit and proper to be re-appointed.
Whether the 2nd Interested Party had already served two terms and was ineligible
The allegation was dismissed for want of evidence; the Petitioner produced no Gazette Notice or instrument of appointment to substantiate it.
Although the Petitioner alleged that the 2nd Interested Party had served two three-year terms as a director, no evidence in the form of a Gazette Notice or other instrument was laid before the Court to confirm the assertion. An allegation unsupported by evidence or law cannot sustain a finding of ineligibility.
Legal principles established
#- Unless there is an express statutory requirement otherwise, an appointing authority has the power to re-appoint a person to public office
- Where no time is prescribed within which an act must be done, it must be done without unreasonable delay, and as often as due occasion arises
- A re-appointment to public office does not require a fresh competitive recruitment process
- Courts should not import dictionary meanings where statutory language is plain and unambiguous
Court orders
#- 1.The Petition is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Not expressly stated in the judgment; the Court entertained a constitutional petition in its first-instance jurisdiction (the Petitioner had raised the question whether the Employment and Labour Relations Court had jurisdiction, but the Court did not adjudicate it)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Cabinet Secretary for Information,Communications and Technology & 3 others;Patricia Kimama & 5 others (Interested Parties) [2020] KEELRC 1122 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1122/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.