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ELRCDismissedJudicial Review Application (Employment and Labour Relations Court, Nairobi)· [2021] KEELRC 118 (KLR)

Republic v Ukur Yatani, Cabinet Secretary, the National Treasury & Planning & another; Strategic Food Reserve Trust Fund & 5 others (Interested Parties) Ex Parte: Okiya Omtatah Okoiti [2021] KEELRC 118 (KLR)

Employment and Labour Relations Court
10 December 2021
4,959 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court dismissed a bid to reinstate Strategic Food Reserve board members, ruling their offices died legally when the fund itself was wound up.

What this practically means

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Executive summary

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Okiya Omtatah Okoiti, as Ex parte Applicant, moved the Employment and Labour Relations Court by Notice of Motion dated 8th July 2020 seeking certiorari to quash Gazette Notice No. 4134 of 17th June 2020, prohibition against its implementation, and mandamus compelling the Cabinet Secretary for National Treasury to adhere to the Public Finance Management (Strategic Food Reserve Trust Fund) Regulations, 2015. He contended that the revocation of appointments of the 2nd to 5th Interested Parties to the Strategic Food Reserve Oversight Board and the declaration that the 6th Interested Party's tenure had lapsed were unlawful, done without a hearing and to serve corrupt maize-importation interests. The Respondents, through a Replying Affidavit of the Principal Secretary, maintained that the Fund was wound up with Cabinet and National Assembly approval under section 24(8) of the Public Finance Management Act, its establishing Regulations were revoked by Legal Notice No. 61 of 2020, and the appointments were consequently redundant by operation of law. The court framed five issues and found it had jurisdiction under section 12 of the ELRC Act as the dispute concerned employment. It expunged confidential documents irregularly obtained by the applicant, applying the Court of Appeal's Okiya Omtatah decision. It held the applicant lacked locus to sue on behalf of the Interested Parties who could sue directly, though he could act for the 1st Interested Party. The revocation was found lawful as the applicant had not demonstrated any procedural irregularity, and the orders sought were incapable of implementation against a defunct Fund. The motion was dismissed with no orders as to costs on 10th December 2021.

Key legal issues

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01

Jurisdiction of the ELRC over revocation of appointments to a public fund board

Holding

The Court found the matter was rightfully before it as it deals with employment of the Interested Parties

Reasoning

The Respondent objected that the dispute was not an employment matter. The court held that the revocation of appointment of the Interested Parties is a matter dealing with their employment, hence within section 12 of the Employment and Labour Relations Court Act.

p. 5
02

Expungement of irregularly obtained documents

Holding

Documents marked 'Confidential' or 'Secret' found in the applicant's custody without authority were expunged

Reasoning

Following the Court of Appeal decision in Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others, the court held that resort to unorthodox means to obtain public documents, where Article 35 procedures were available, cannot be countenanced; such documents were expunged from the record.

p. 5
03

Locus standi of the Ex parte Applicant

Holding

Applicant lacked locus to sue on behalf of the Interested Parties, who could sue for themselves, though he had capacity to sue on behalf of the 1st Interested Party

Reasoning

The 6th Interested Party had filed a replying affidavit articulating the position of all the board members, showing they had capacity to approach the court directly. Their letters of appointment showed private contracts of service. However, the applicant retained standing vis-à-vis the 1st Interested Party, a public institution.

p. 6
04

Legality of the revocation of appointments

Holding

The revocation was lawful, following the winding up of the Fund under section 24(8) of the PFM Act with National Assembly approval

Reasoning

Section 24(8) permits the Cabinet Secretary to wind up a national public fund with National Assembly approval. The Regulations establishing the Fund were revoked by Legal Notice No. 61 of 2020, the National Assembly was notified, and no party demonstrated the procedure was not followed. The offices became defunct by operation of law.

p. 6

Legal principles established

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  • A person seeking judicial review must fit into one of the categories in Articles 22 and 258 of the Constitution and specify the capacity in which they approach the Court
  • Irregularly obtained documents, including confidential public documents, may be expunged from the record
  • Where a public fund is lawfully wound up with the approval of the National Assembly, appointments to its oversight board are rendered redundant by operation of law and cannot be reinstated

Court orders

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  1. 1.All the documents listed under paragraph 15 of the Replying Affidavit of Dr. Julius Monzi Muia expunged from the record
  2. 2.The Notice of Motion dated 8th July 2020 dismissed with no orders as to costs

Authorities

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Legislation

  • Public Finance Management (Strategic Food Reserve Trust Fund) Regulations, 2015Regulation 7(2)(f); Paragraph 2(b) of the Schedule
  • Public Finance Management Act, 2012Section 24(4), 24(8), 24(9)
  • Public Finance Management (National Government) Regulations, 2015Regulation 209
  • Public Finance Management (Strategic Food Reserve Trust Fund) (Revocation) Regulations 2020Legal Notice No. 61 of 2020
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedures) Rules, 2016Rule 28
  • Constitution of Kenya, 2010Articles 3(1), 10, 22, 258, 35, 47, 48, 50(4), 73, 75, 129, 153(4), 159(2)(d), 232, 236, 259
  • Fair Administrative Action Act, 2015
  • Interpretation and General Provisions ActSections 7(2) and 51
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)Section 10(3) and (4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (19)

  • Kenya Anti-Corruption Commission v Deepak Chamnlal Kamani & 4 Others
    [2014] eKLR
  • People's Union for Democratic Rights & Others v Union of India & Others
    (1982) 3 SCC 235
  • Timothy Otuya Afubwa & another v County Government of Trans Nzoia & 3 Others
    [2016] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & another
    [2013] eKLR
  • J Harrison Kinyanjui v Attorney General & another
    [2016] eKLR
  • United States University (USIU) v Attorney General
    [2012] eKLR
  • Prof. Daniel N. Mugendi v Kenyatta University & Others
  • Republic v Kenya Power & Lighting Co. Ltd & Another
    [2013] eKLR
  • Republic v National Police Service Commission ex-parte Daniel Chacha
    [2016] eKLR
  • Dr. Christopher Ndarathi Murungaru v AG & another
    Civil Application No. Nai 43 of 2006 (24/2006)
  • Anarita Karimi v Republic
    [1976-80] 1 KLR 1272
  • Narok County Government & another v Richard Bwogo Birir & Another
    [2015] eKLR
  • Re Kadhis' Court: Very Right Rev Dr. Jesse Kamau & Others v The Hon. Attorney & another
    HMCA No. 890 of 2004
  • Keroche Industries Limited v Kenya Revenue Authority & 5 Others
    (2007) KLR 240
  • Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996
  • Kenya Human Rights Commission v Communications Authority of Kenya & 4 Others
    [2018] eKLR
  • Kenya Union of Domestic Hotels, Education Institutions & Hospitals, Workers Union v Kenya Revenue Authority & 3 Others
    [2014] eKLR
  • Tukero Ole Kina v Attorney General & another
    [2019] eKLR
  • Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others
    [2020] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Ukur Yatani, Cabinet Secretary, the National Treasury & Planning & another; Strategic Food Reserve Trust Fund & 5 others (Interested Parties) Ex Parte: Okiya Omtatah Okoiti [2021] KEELRC 118 (KLR)", Case Analysis (2021). Judicial Review Application (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/118/eng@2021-12-10

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