Michael Kojo Otieno & another v County Public Service Board & 7 others [2021] KEELRC 201 (KLR)
The bottom line
#The Employment Court dismissed a challenge to Homa Bay's county recruitment, ruling the same issues had already been decided in an earlier case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Board had requisite quorum
The Petitioners did not produce any document setting the minimum number for quorum; more than half of Board members attended meetings, so decisions made would not be disturbed
The Court defined quorum using Black's Law Dictionary and noted the Petitioners asserted 5 members were required and that a Chairperson had to be present, but disclosed no governing document fixing quorum. The Respondents showed the Board had 6 members with 3 ordered to stay away, leaving 3 who transacted business. Since more than half attended, decisions were valid.
Whether the 8th Respondent could validly act under delegation
The delegation was irregular because the 8th Respondent's office (Director of Recruitment) is not enumerated in section 86 of the County Governments Act, but quashing actions taken at the Board's behest would prejudice accrued rights
Section 86 of the County Governments Act permits delegation only to specified offices such as chief officer or administrators. The 8th Respondent was Director of Recruitment and not among them, making the April 2020 delegation irregular. Nevertheless, since he acted on the Board's instructions, quashing the resulting actions would adversely affect parties with accrued rights, so the Court declined to do so.
Composition of the Board as at 8 July 2020
The Court could not determine whether the composition was valid as at that date because the Petitioners provided no records of who the members were or who had been removed
Section 58 of the County Governments Act requires a board of at least 5 and at most 7 members including a chairperson, at least 3 other appointees and a certified public secretary as Secretary. The Petitioners challenged composition as at 8 July 2020 but produced no documentation establishing membership or removals at that date, so the Court was unable to find the composition invalid.
Re-litigation of issues determined in Kisumu Petition No. E004 of 2021
The challenge to the Environmental Officers' appointments and to the delegation to the 8th Respondent were already determined in Kisumu Petition No. E004 of 2021 and are caught by issue estoppel and abuse of process
The Petitioners had previously challenged the same Environmental Officers' appointments of 15 January 2021 and the delegation to the 8th Respondent in Kisumu Petition No. E004 of 2021, which was dismissed on 10 March 2021. Re-raising those issues here would amount to the Court sitting on appeal over its own determination and constitutes surreptitious abuse of process.
Legal principles established
#- Quorum and composition of a board are distinct legal concepts
- Where most of the issues in a petition were already determined in a previous suit between the parties, the petition is caught by issue estoppel
- Bringing an issue already determined in a prior petition amounts to an abuse of court process
Court orders
#- 1.The Petition is dismissed for lack of merit and as caught by the doctrine of issue estoppel
- 2.Costs to the Respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 (constitutional petition before the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kojo Otieno & another v County Public Service Board & 7 others [2021] KEELRC 201 (KLR)", Case Analysis (2021). Petition No. E004 of 2021 (Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/201/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.