Michael Kojo Otieno & another v Homa Bay County Assembly [2021] KEELRC 1737 (KLR)
The bottom line
#Kenyans challenging county hiring decisions must first appeal to the Public Service Commission before going to court, or the court will throw the case out.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction over a petition challenging county chief officer recruitment and approval proceedings brought without first appealing to the Public Service Commission
The Court declined jurisdiction; the petitioners were obliged to exhaust the appellate procedure before the Public Service Commission under section 77 of the County Governments Act read with sections 85-89 of the Public Service Commission Act
Section 77(2)(a) of the County Governments Act expressly covers decisions on recruitment, selection, appointment and qualifications attached to any office, making the Commission the first port of call. Section 87(2) of the Public Service Commission Act prohibits filing proceedings in court on such matters before exhausting the statutory procedure. The Court of Appeal's decision in Secretary, County Public Service Board & Anor v Hulbhai Gedi Abdille endorses exhaustion and binds this Court.
Whether the failure to join the County Public Service Board and the four nominated chief officers was fatal
The Board was a necessary party as the body that generated the nominees, and the four nominees should also have been joined since the orders sought could adversely affect them
The County Assembly did not itself generate the names of the nominees; they were the product of a process conducted by the County Public Service Board. Orders annulling the process would affect the Board and the nominees directly, so both were necessary parties whose absence would have compelled the Court to decline the orders sought.
Whether the County Assembly has capacity to be sued
The objection was not determinative; a County Assembly is recognised under Article 176 and qualifies as a person under Article 258, which includes unincorporated bodies of persons
Although the Assembly argued it was not a legal person capable of being sued, Article 258 of the Constitution defines a person to include a body of persons incorporated or unincorporated, and Article 176 recognises county assemblies. The objection therefore could not defeat the petition on capacity grounds.
Legal principles established
#- A person dissatisfied with the recruitment, selection or appointment of county public officers must first appeal to the Public Service Commission under section 77 of the County Governments Act before approaching the Court; section 87(2) of the Public Service Commission Act bars legal proceedings until that procedure is exhausted
- A County Assembly, though not a body corporate in the ordinary sense, is capable of being sued as a person within the meaning of Article 258 of the Constitution
Court orders
#- 1.The Court declines jurisdiction
- 2.The Petition is dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (including Articles 176, 258, 10 and 232); County Governments Act; Public Service Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kojo Otieno & another v Homa Bay County Assembly [2021] KEELRC 1737 (KLR)", Case Analysis (2021). Petition (Homa Bay; Constitutional Petition) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1737/eng@2021-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.