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ELRCPartially AllowedPetition (application dated 30th September, 2020)· [2021] KEELRC 1247 (KLR)

Leonard Sigei Arap Bett v Governor, Bomet County & 2 others; Salaries and Remuneration Commission (Interested party) [2021] KEELRC 1247 (KLR)

Employment and Labour Relations Court
13 July 2021
HWHellen Wasilwa
2,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked Bomet County from hiring partisan staff beyond positions approved by the Salaries and Remuneration Commission.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (Hellen Wasilwa J) determined an interlocutory application dated 30th September 2020 in a petition by Sigei Arap Bett against the Governor of Bomet, the County Government of Bomet and the Bomet County Public Service Board. The applicant, in a public interest suit under Articles 159(2)(e), 165(3)(d)(iii), 226(1), 232, 235(1), 236, 258(1) and 259(1) of the Constitution, alleged that the respondents had employed over twenty partisan staff - including advisors and personal assistants - beyond the chief of staff, three advisors and a personal assistant approved by the Salaries and Remuneration Commission under Article 230(4), contrary to Article 201 on prudent use of public funds. He sought conservatory orders and mandamus directing disclosure of the partisan staff lists. The respondents opposed, arguing the application was defective, that irregular appointments had already been revoked on 30th June 2020, and that no prima facie case was established. After written submissions, the court held that prayer No. 3 was overtaken by events but allowed prayer No. 2, finding the alleged authority for the appointments was not legible and could not be relied upon. The court issued conservatory orders restraining the appointment of any partisan staff not authorized by the SRC, pending hearing of the petition, and awarded costs in the petition. The mandamus prayers for disclosure of staff lists were not among the orders allowed.

Key legal issues

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01

Whether conservatory orders should issue restraining appointment of partisan staff

Holding

Conservatory orders granted restraining further appointments not authorized by the SRC

Reasoning

The court found that the respondents relied on an alleged authority from the Salaries and Remuneration Commission which was not legible and could not be relied upon. Irregularly created partisan positions risk expenditure of public funds contrary to Article 201. Pending hearing of the petition, restraint on further unauthorized appointments was warranted to preserve the subject matter and constitutional values.

p. 4
02

Effect of revocation of irregular appointments on the application

Holding

Prayer 3 rendered moot by the revocation of irregular partisan appointments

Reasoning

The 2nd and 3rd Respondents deponed that irregularly appointed partisan members, including the gender advisor, had their appointments revoked on 30th June 2020 pursuant to the corrective mandate under the County Government Act. The court accepted that this rendered prayer No. 3 overtaken by events and irrelevant, refusing it while allowing the prospective restraining orders.

p. 4

Legal principles established

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  • A purported authority relied on for public appointments must be legible and reliably established before it can support appointments to county offices
  • Irregularly created partisan staff positions may be restrained by conservatory order pending full hearing where appointments are not authorized by the Salaries and Remuneration Commission

Court orders

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  1. 1.A conservatory order issuing, staying the Respondents and their officers from appointing any so-called partisan staff to the office of the 1st Respondent or any other office of the 2nd Respondent other than those authorized by the Salaries and Remuneration Commission
  2. 2.A conservatory order, pending hearing and determination of the suit, staying the appointment by the 2nd Respondent of any advisors, special advisors, directors in the office of the governor, personal assistant to the governor, personal assistant to the deputy governor, personal assistant to the county secretary or other partisan staff known by any other style to any office not approved in the 2nd Respondent's staff establishment or authorized by the Salaries and Remuneration Commission
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35, 159(2)(e), 165(3)(d)(iii), 201, 226(1), 230(4), 232, 235(1), 236, 258(1), 259(1)
  • County Government Actsections 75, 77

Cases cited (6)

  • Gatirau Peter Munya v Dickson Kithinji & 2 others
    [2014] eKLR
  • London Distillers (K) Limited v Cabinet Secretary Ministry of Education & 4 others
    [2020] eKLR
  • Concord Insurance Company Limited v NIC Bank Limited
    [2013] eKLR
  • Oracle Production Limited v Decapture Limited & 3 others
    [2014] eKLR
  • Progress Welfare Association of Malindi & 3 others v County Government of Kilifi and 4 others
    [2020] eKLR
  • Benson Wachira Muthiga v Nairobi City County Public Service Board and another
    [2015] eKLR
Jurisdiction invoked
Articles 159(2)(e), 165(3)(d)(iii), 226(1), 232, 235(1), 236, 258(1) and 259(1) of the Constitution of Kenya 2010

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, "Leonard Sigei Arap Bett v Governor, Bomet County & 2 others; Salaries and Remuneration Commission (Interested party) [2021] KEELRC 1247 (KLR)", Case Analysis (2021). Petition (application dated 30th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1247/eng@2021-07-13

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