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ELRCPartially AllowedPetition dated 10th August, 2021· [2021] KEELRC 171 (KLR)

Vincent Omao Mariita v County Government of Nyamira & 4 others; Godfrey Kiriago Nyangau & another (Interested Parties) [2021] KEELRC 171 (KLR)

Employment and Labour Relations Court
16 December 2021
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that county governments cannot handpick staff for jobs under the guise of 'secondment' — such appointments must be advertised and competitive.

What this practically means

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Executive summary

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The Petitioner, acting in person, filed a petition dated 10th August, 2021 challenging the recruitment and secondment of the 1st and 2nd Interested Parties to the positions of Director Human Resources and Payroll Manager in the County Government of Nyamira. He sought declarations that the appointments were illegal, discriminatory and unconstitutional, revocation of the appointment letters, a permanent injunction restraining payment of salaries to the Interested Parties, and costs. The Respondents opposed, contending the positions had fallen vacant following redeployment, that the officers were seconded by their parent ministries with Public Service Commission approval, and that secondment is distinct from recruitment. The parties agreed to have the application and petition heard together by way of written submissions. The court framed two issues: whether the secondment was procedural, and whether the Petitioner was entitled to the orders sought. Examining the Public Service Commission Act, 2017 definition of secondment and Section 73 of the County Government Act, the court identified three legitimate occasions for secondment: preserving pension rights, capacity building, and staffing new entities. It found the Interested Parties had first been appointed and had accepted offer letters, amounting to recruitment, which was conducted without advertisement, without competition and by cherry-picking candidates forwarded without stated skills, violating Articles 10, 27(4), 56(c) and 232(1) of the Constitution and Section 65 of the County Government Act. The court declared the appointment and secondment illegal, discriminatory and unconstitutional, ordered revocation, and awarded costs to the Petitioner against the Respondents.

Key legal issues

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01

Whether the secondment of the Interested Parties was procedural

Holding

The recruitment and secondment was unprocedural and unconstitutional as it violated constitutional values of fair competition and merit.

Reasoning

The court analysed the rationale for secondment under the Public Service Commission Act, 2017 and Section 73 of the County Government Act, identifying three occasions justifying secondment: preservation of pension rights, capacity building, and staffing a new government entity. The Respondents neither sought specific skills nor advertised the positions. The Interested Parties were issued and accepted offer letters, which amounted to recruitment. The positions were filled by cherry-picking candidates without competition, contrary to Section 65 of the County Government Act and Articles 10, 27(4), 56(c) and 232(1) of the Constitution.

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02

Whether forwarding names without stating required skills violates the Constitution

Holding

Forwarding names without reasons or special skills attributed violates Article 232(1)(g)(i) on values and principles of public service.

Reasoning

The court held that if the Respondents required specialised qualifications from the National Government, they ought to have written to ministries stating the special skills, experience and qualifications required. Instead, names were forwarded without attribution of reasons or special skills, offending Article 232(1)(g)(i) of the Constitution.

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03

Whether the recruitment afforded adequate and equal opportunities

Holding

The recruitment was neither fairly competitive nor did it afford equal opportunities to potential applicants.

Reasoning

The instructions to the County Public Service Board were that positions be filled competitively, but the Respondents handpicked candidates. Nothing special about the two officers was demonstrated, and the procedure failed to satisfy the standards, values and principles in Articles 10, 27(4), 56(c) and 232(1) of the Constitution.

p. 3

Legal principles established

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  • Appointments to county public service positions must be competitive and based on fair competition and merit; cherry-picking candidates without competition violates Articles 10, 27(4), 56(c) and 232(1) of the Constitution.
  • Where persons are issued with offers of appointment which they accept before secondment, that constitutes recruitment.

Court orders

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  1. 1.A declaration that the appointment and secondment of the 1st and 2nd Interested Parties is illegal, discriminatory and unconstitutional
  2. 2.An order for the revocation of the Appointment and secondment of the 1st and 2nd Interested Parties to the service of the Respondents
  3. 3.The costs of this petition shall be borne by the Respondents

Authorities

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Legislation

  • Public Service Commission Actdefinition of Secondment
  • County Government ActSection 73 (Secondments)
  • County Government ActSection 65(1)
  • Constitution of Kenya, 2010Articles 1, 2(2), 10, 19(1), 21(1), 27, 27(4), 28, 35(1), 41, 47, 47(1), 50(10), 55, 56(c), 185(3), 226, 232(1), 232(1)(g)(i), 32 of the Fourth Schedule
Jurisdiction invoked
Articles 27, 28, 41, 47 and 55 of the Constitution (petition alleging violation of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vincent Omao Mariita v County Government of Nyamira & 4 others; Godfrey Kiriago Nyangau & another (Interested Parties) [2021] KEELRC 171 (KLR)", Case Analysis (2021). Petition dated 10th August, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/171/eng@2021-12-16

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