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ELRCDismissedPetition No. 2 of 2021 (as lodged 19 January 2021)· [2021] KEELRC 1996 (KLR)

Michel Kojo Otieno & another v Lameck Otieno Ogot & 3 others; Ethics and Anti-Corruption Commission (Interested party) [2021] KEELRC 1996 (KLR)

Employment and Labour Relations Court
10 March 2021
RSRadido Stephen
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld Homa Bay County's job adverts, ruling that a missing written delegation was a minor irregularity that could not invalidate the recruitment.

What this practically means

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Executive summary

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The Petitioners, appearing in person, challenged an advertisement published on 11 January 2021 by the Director Recruitment and Selection/Administrator on behalf of the County Public Service Board, Homa Bay, contending that the Board had not approved the advert and had not delegated its functions to the Director. They sought declarations that the Respondents violated the Constitution, the County Governments Act, the Fair Administrative Action Act and the Public Finance Management Act, and that the advert was invalid. The Respondents and the Ethics and Anti-Corruption Commission filed replying affidavits; the Commission did not file submissions. The Court adopted largely the issues framed by the parties. It declined to address jurisdiction at the Petitioners' invitation, noting the Respondents had not challenged it. On representation, the Court held that instructions to Bruce Odeny & Co. Advocates were invalid because Board members relieved of their positions (the removal being maintained by a stay of execution pending appeal of an earlier judgment quashing it) could not give binding instructions. On the merits, the Court found the Board meeting of 6 January 2021, attended by 4 members, was quorate and validly resolved to advertise the vacancies. The absence of a written delegation to the 1st Respondent was held a minor irregularity that did not vitiate the advertisement. The Court declined to examine the unpleaded challenge to the hiring of 4 Environmental Officers. The Petition was dismissed with each party bearing their own costs, the Court having found the litigation was in the public interest.

Key legal issues

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01

Quoracy of the County Public Service Board meeting approving the advertisement

Holding

The meeting of 6 January 2021 attended by 4 Board members was quorate and validly resolved to advertise the vacancies

Reasoning

Section 58 of the County Governments Act provides for a Board of not more than 7 persons. Minutes produced showed 4 members attended on 6 January 2021 and resolved to recruit for the positions advertised on 11 January 2021. The Court was satisfied the meeting was quorate and the resolution valid, defeating the claim that the advertisement lacked Board approval.

p. 4
02

Delegation to advertise to the 1st Respondent

Holding

No written delegation was exhibited, but given the substantive Board resolution, the omission was a minor irregularity that did not vitiate the advertisement

Reasoning

Section 86(1) permits delegation in writing to a named county public officer. No delegation instrument was exhibited, though the 1st Respondent's employment as Director of Recruitment was undisputed. The Court held that where a substantive resolution to advertise existed, failure to execute a written delegation was immaterial to the validity of the advertisement.

p. 4
03

Representation of the County Public Service Board

Holding

The instructions to Bruce Odeny & Co. Advocates dated 20 January 2021 were invalid because persons relieved of Board membership (whose removal was stayed pending appeal) cannot give binding instructions

Reasoning

A prior judgment quashed the Governor's decision removing Ogada, Ogutu and Odundo from the Board, but a stay of execution granted on 11 December 2020 maintained the removal. Those persons therefore could not make binding decisions for the Board, rendering their instructions to the firm invalid.

p. 4

Legal principles established

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  • A County Public Service Board may delegate its functions in writing to a named county public officer under section 86(1) of the County Governments Act
  • A failure to exhibit a written delegation instrument may be a minor irregularity that does not vitiate an advertisement where the Board made a substantive resolution
  • Where a stay of execution of a judgment reinstating Board members is in place, those relieved of membership cannot make valid binding decisions including instructing advocates
  • Courts rarely go behind the record to confirm whether an advocate has been instructed for a party

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010various provisions cited in the intitulement
  • County Governments Actsections 58, 59, 86(1)
  • Fair Administrative Action Act
  • Public Finance Management Act

Cases cited (1)

  • Daniel Omondi Ogada & Ors v County Assembly of Homa Bay & Ors (2020) eKLR
    Kisumu Petition No. 42 of 2019
Jurisdiction invoked
Not contested by the parties; the Court declined to address jurisdiction at the Petitioners' invitation

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, "Michel Kojo Otieno & another v Lameck Otieno Ogot & 3 others; Ethics and Anti-Corruption Commission (Interested party) [2021] KEELRC 1996 (KLR)", Case Analysis (2021). Petition No. 2 of 2021 (as lodged 19 January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1996/eng@2021-03-10

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