Okiya Omtatah Okoiti v Parliamentary Service Commission & another [2021] KEELRC 1471 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear a challenge to the Clerk of the National Assembly's appointment, and any citizen can bring such a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to determine the petition
- 2.Whether the petitioner has locus standi to file the instant petition
- 3.Whether there is exhaustion of alternative methods of dispute resolution under section 14(1) of the Access to Information Act
- 4.Whether the petition offends the provisions of Article 252(c) of the Constitution, 2010
- 5.Whether by granting the orders sought herein the same will amount to discrimination against the 2nd respondent
Key legal issues
#Whether the ELRC has jurisdiction over a challenge to the appointment of the Clerk of the National Assembly
The court has jurisdiction; recruitment is an element of employment and the dispute is anchored on employment/labour relations under Article 162(2)(a) and the ELRC Act
The court's jurisdiction flows from Article 162(2)(a) and (3) and the ELRC Act. The relationship outlined under section 12(1) and (2) of the ELRC Act is not exhaustive; connected purposes fall within the court's jurisdiction. Where a recruitment process is challenged as a clear constitutional violation or breach of fundamental rights, the court's jurisdiction is invoked, notwithstanding Article 128 of the Constitution and the PSC Act. No special circumstances remove the court's original jurisdiction.
Whether the petitioner, a public-spirited individual not an employee of Parliament, has locus standi
Yes; Articles 22 and 258 confer public interest standing and Article 3(1) obliges all persons to defend the Constitution
The petition is anchored on Articles 22, 23, 48, 50, 165 and 258 of the Constitution. Article 258(2)(c) allows a person acting in the public interest to institute proceedings claiming the Constitution has been contravened. The petitioner contends the Constitution has been violated and thus meets the Article 258 and 22 threshold; the absence of an employer-employee relationship is unnecessary to standing.
Whether the petitioner must first exhaust remedies under section 14(1) of the Access to Information Act
No; exhaustion is not required where the core issue is the recruitment itself and CAJ's outcome would be non-binding
While the exhaustion doctrine is sound, the core of the petition is the recruitment of the 2nd respondent and contravention of the PSC Act. Separating access-to-information into a separate forum would abdicate the court's jurisdiction and set up parallel procedures contrary to Article 159. Further, the Supreme Court in Kenya Vision 2030 Delivery Board held CAJ recommendations are not binding, so subjecting the petitioner to that mechanism would not meet the ends of justice.
Whether illegally or irregularly obtained documents can be dealt with on a preliminary objection
No; that is a matter of fact requiring evaluation of evidence
The objections on illegally obtained privileged documents under section 49(1) and (2) of the PSC Act and Article 50(4) relate to facts, not pure points of law. Determining them at the preliminary stage would deny the parties a fair chance to examine each allegation and position.
Whether non-joinder of the National Assembly defeats the petition
No; a petitioner may choose his respondents and non-joinder is not fatal under the Mutunga Rules
A petitioner must be allowed to decide who is a respondent. Where there is non-joinder of an appropriate respondent, the issue crystallises only on remedies. Rule 5(b) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides a petition shall not be defeated by misjoinder or non-joinder of parties.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both and it cannot arrogate to itself jurisdiction exceeding that conferred by law
- Recruitment is a proper element of employment and falls within the ELRC's jurisdiction under Article 162(2)(a); an employer-employee relationship is not a condition precedent
- The ELRC has jurisdiction to enforce not only Article 41 labour rights but also all fundamental rights ancillary and incidental to employment and labour relations matters
- A party whose petition is anchored on Article 258 enjoys special standing, including a person acting in the public interest
- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed, subject to exceptions
- A petition shall not be defeated by reason of misjoinder or non-joinder of parties
Court orders
#- 1.The objections made by the respondents are found without merit and are dismissed
- 2.The court shall address the petition herein on the merits
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) and (3) of the Constitution, 2010 read with the Employment and Labour Relations Court Act, 2011; standing under Articles 22, 23 and 258 of the Constitution
Relief refused
#Dismissal/striking out of the petition for want of jurisdiction and locus standi
Court found jurisdiction properly invoked under Article 162(2)(a) and the ELRC Act, and petitioner met the Article 22 and 258 threshold
Expungement of documents allegedly illegally and irregularly obtained
A matter of fact not properly addressed through a preliminary objection; can only be addressed upon evaluation of the evidence
Reference of the access-to-information component to the Commission on Administrative Justice under section 14(1) of the Access to Information Act
CAJ recommendations are non-binding; sending the petitioner there first would abdicate the court's jurisdiction and create parallel procedures
Costs
Costs shall abide the petition (discretionary under section 12(4) of the ELRC Act)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, objections made by the respondents are found without merit and are hereby dismissed. the court shall address the petition herein on the merits.
Without jurisdiction a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending before it.
The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of that subject matter
In light of the allegations comprised in the petition, the court finds the petitioner meets the threshold of Article 258 and 22 of the Constitution, 2010 and cannot be faulted for instituting these proceedings and I hold that he is within his right to commence the same.
(b) A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute.
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
Issues in the judgment
#Citation year inconsistency for the same Supreme Court case cited as both 2011 and 2012
Apparent typographical error in citation of Official Receiver v Sukhdev printed as '[1070] EA'
Inconsistent references to the 2nd respondent's alleged contravention of section 26(2) and section 6(2) of the PSC Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masoud v Cabinet Secretary for Labour & another; Kenya Revenue Authority (Interested Party) (Judicial Review Application E006 of 2025) [2025] KEELRC 2686 (KLR)[2025] KEELRC 2686 (KLR)2 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Parliamentary Service Commission & another [2021] KEELRC 1471 (KLR)", Case Analysis (2021). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1471/eng@2021-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.