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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over revocation of appointments to a public fund board
The Court found the matter was rightfully before it as it deals with employment of the Interested Parties
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.
Expungement of irregularly obtained documents
Documents marked 'Confidential' or 'Secret' found in the applicant's custody without authority were expunged
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.
Locus standi of the Ex parte Applicant
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
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.
Legality of the revocation of appointments
The revocation was lawful, following the winding up of the Fund under section 24(8) of the PFM Act with National Assembly approval
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.
Legal principles established
#- 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
#- 1.All the documents listed under paragraph 15 of the Replying Affidavit of Dr. Julius Monzi Muia expunged from the record
- 2.The Notice of Motion dated 8th July 2020 dismissed with no orders as to costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.