Okoiti v Ethics and Anti-Corruption Commission & another (Petition E040 of 2020) [2021] KEELRC 2302 (KLR)
The bottom line
#Kenya's Employment Court upheld the EACC's choice to fill vacancies internally, ruling the recruitment was lawful, merit-based, and constitutionally sound.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioner
The Petitioner has the requisite locus standi under Articles 22 and 258 of the Constitution, acting in the public interest
Article 22(1) and (2) allows every person, and a person acting in the public interest, to institute proceedings claiming a right or fundamental freedom has been violated; Article 258 extends the same to constitutional contraventions. Reliance was placed on Timothy Otuya Afubwa and Mumo Matemu. The court was satisfied the Petitioner had standing, notwithstanding the Respondent's objections of bad faith.
Legality and constitutionality of the internal recruitment process
The internal advertisement was lawful and constitutional, being supported by the Commission's Corporate Services Policies and Procedures Manual (Clauses 2.4.5, 2.4.6 and 2.4.8) and by Treasury Circular Number 7/2019 which froze new recruitments but not promotions
The court perused Treasury Circular No. 7/2019 and confirmed it froze new appointments except for security agencies, health workers and the education sector, but did not bar promotions. The Commission's policy manual expressly permits vacancies to be filled competitively based on merit and advertised either internally or externally as the Commission may determine. The Commission therefore acted within its mandate.
Alleged violation of Articles 27, 41(1) and 47 and statutory provisions
No violation of the Constitution or statute was established since the recruitment process was well founded in law
Having found the internal recruitment process lawful, the court held the Petitioner failed to establish any violation of the constitutional and statutory provisions pleaded, including the alleged discrimination, unfair labour practice and unfair administrative action claims.
Legitimate expectation
The court found no violation of legitimate expectation, having found the process lawful; no standalone analysis was undertaken
Though framed as an issue for determination, the court did not separately analyse legitimate expectation, implicitly resolving it against the Petitioner by its finding that the internal recruitment was lawful and that no violation of the Constitution or statute was established.
Legal principles established
#- Under Articles 22 and 258 of the Constitution, every person, including a person acting in the public interest, has the right to institute court proceedings alleging violation of the Bill of Rights or contravention of the Constitution
- A public body may lawfully fill vacancies by internal advertisement where its own policies provide that vacancies may be advertised either internally or externally as the Commission may determine
Court orders
#- 1.The Petition dated 27th August 2020 is dismissed
- 2.No orders as to costs
- 3.The interim orders issued on 9th October 2020 suspending the process of filling the vacancies within the 1st Respondent are vacated
- 4.The 1st Respondent is at liberty to proceed with the recruitment process forthwith
- Jurisdiction invoked
- Articles 162(2) and 165(5) of the Constitution of Kenya, 2010 as read with Section 12 of the Employment and Labour Relations Act and Rule 28 of the Employment and Labour Relations Rules, 2016; enforcement of fundamental rights under Articles 22 and 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Ethics and Anti-Corruption Commission & another (Petition E040 of 2020) [2021] KEELRC 2302 (KLR)", Case Analysis (2021). Petition No E040 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2302/eng@2021-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.