Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No. E004 of 2021 (Homa Bay)· [2021] KEELRC 201 (KLR)

Michael Kojo Otieno & another v County Public Service Board & 7 others [2021] KEELRC 201 (KLR)

Employment and Labour Relations Court
15 December 2021
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
Michael Kojo Otieno and Evance Otieno Oloo Gor petitioned the Employment and Labour Relations Court at Kisumu, alleging that the County Public Service Board, Homa Bay was not validly or fully constituted, rendering null and void the advertisements for six Chief Officer positions, the Health Department recruitment advert, and the appointment of Environmental Officers on 15 January 2021. They sought certiorari-type quashing orders and a prohibition against further appointments pending proper constitution of the Board. The Respondents opposed, maintaining the Board had six members with a quorum of not less than three after three members were ordered to keep off pending appeal. The Court declined to revisit the appointment of the Environmental Officers and the delegation to the 8th Respondent, both already determined in Kisumu Petition No. E004 of 2021, holding the re-litigation was caught by issue estoppel and constituted an abuse of process. On the Health Department advert, the Court found no evidence pleaded or exhibited in support. On quorum and composition, the Petitioners produced no document fixing the minimum number of members, and since more than half of the Board attended meetings, the Court would not disturb the decisions taken. The delegation to the 8th Respondent was found irregular under section 86 of the County Governments Act, but quashing would prejudice accrued rights. The Court was unable to determine the Board's composition as at 8 July 2020 for lack of records. The Petition was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether the Board had requisite quorum

Holding

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

Reasoning

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.

p. 3
02

Whether the 8th Respondent could validly act under delegation

Holding

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

Reasoning

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.

p. 3
03

Composition of the Board as at 8 July 2020

Holding

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

Reasoning

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.

p. 4
04

Re-litigation of issues determined in Kisumu Petition No. E004 of 2021

Holding

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

Reasoning

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.

p. 2

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. 1.The Petition is dismissed for lack of merit and as caught by the doctrine of issue estoppel
  2. 2.Costs to the Respondents

Authorities

#

Legislation

  • County Governments Actsection 86
  • County Governments Actsection 58

Cases cited (2)

  • Michael Kojo Otieno & Ar v Lameck Otieno Ogot & Ors (Kisumu Petition No. E004 of 2021)
  • Daniel Omondi Ogada & Ors v County Assembly of Homa Bay & Ors
    (2020) eKLR
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.