Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No. 12 of 2018· [2020] KEELRC 1384 (KLR)

Kennedy Ongiro Mogire & 3 others v James Elvis Omariba Ongwae Governor, Kisii County & 22 others [2020] KEELRC 1384 (KLR)

Employment and Labour Relations Court
10 March 2020
MNMathews N. Nduma
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled Kisii County's public service board acted lawfully despite lacking a substantive chairperson, so the 18 county appointments stand.

What this practically means

#

Executive summary

#
The petitioners, appearing in person, challenged the recruitment and appointment of 18 county officers (County Secretary, Chief Officers and Directors) by the Kisii County Government, contending that the Kisii County Public Service Board lacked a substantive chairperson and secretary when the recruitment was conducted, and that there was no public participation during vetting and approval by the County Assembly. They sought declarations that the appointments were illegal, null and void, and permanent injunctions restraining the appointed officers and barring further appointments until a chairperson and secretary were in office. The respondents opposed the petition, asserting that the board had four substantive members, exceeding the statutory quorum of three, that a qualified member acted as chairperson, that the recruitment was competitive and lawful, and that the petition was an abuse of process and filed inordinately late. The court framed a single issue: whether the petitioners had disclosed a case on a balance of probabilities warranting the reliefs sought. It held that the complaints were general, that no specifics of the recruitment process were pleaded, and that the board met quorum at all material times. Relying on Section 22 of the Interpretation and General Provisions Act, the court held that no lacuna in law arises from a vacancy where members act in acting capacity. The petition was dismissed with costs in favour of the 6th to 23rd respondents.

Key legal issues

#
01

Whether the Kisii County Public Service Board was properly constituted at the time of the impugned recruitment

Holding

The board was properly constituted; it had four members, met the quorum of three, and a qualified member acted as chairperson pending substantive appointment

Reasoning

The court found that at all material times the board had four substantive members, exceeding the statutory quorum of three, and that a member sat as acting chairperson after the chairman's resignation. If the petitioners' argument were upheld, the county government would be unable to fill vacant positions during recruitment, an outcome defeated by Section 22 of the Interpretation and General Provisions Act which allows no lacuna in law.

p. 3
02

Whether the petitioners proved violation of Articles 10, 47, 175 and 196 of the Constitution and Section 5(1) of the Fair Administrative Action Act

Holding

No violation was established; the petition was dismissed with costs

Reasoning

The petitioners' complaints were general, with no specifics on the recruitment process of each respondent. The court was not satisfied that the board was improperly constituted or that there was no public participation. The petitioners fell short of establishing any statutory or constitutional violation warranting declarations and injunctions, and the petition lacked merit and was dismissed with costs against them.

p. 4

Legal principles established

#
  • A vacancy in the chairmanship of a county public service board does not paralyse the board where quorum is met and a qualified member acts as chairperson - the law recognises no lacuna
  • A party alleging unlawful recruitment must plead specifics of the recruitment process for each impugned officer; general allegations are insufficient on a balance of probabilities

Court orders

#
  1. 1.The petition is dismissed
  2. 2.Costs awarded in favour of the 6th to 23rd respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 47, 175, 196
  • County Governments ActSection 58(1)
  • Fair Administrative Action Act, No. 4 of 2015Section 5(1)
  • Interpretation and General Provisions ActSection 22

Cases cited (1)

  • Charles B. Nyaka vs The County Government of Kisii and another
    Cause No. 10 of 2017
Jurisdiction invoked
Articles 10, 47, 175 and 196 of the Constitution of Kenya, 2010 and Section 58 of the County Governments Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kennedy Ongiro Mogire & 3 others v James Elvis Omariba Ongwae Governor, Kisii County & 22 others [2020] KEELRC 1384 (KLR)", Case Analysis (2020). Petition No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1384/eng@2020-03-10

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