Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No E040 of 2020· [2021] KEELRC 2302 (KLR)

Okoiti v Ethics and Anti-Corruption Commission & another (Petition E040 of 2020) [2021] KEELRC 2302 (KLR)

Employment and Labour Relations Court of Kenya
15 January 2021
3,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

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

#
The Petitioner, Okiya Omutatah Okoiti, challenged an internal recruitment process by the Ethics and Anti-Corruption Commission (EACC) to fill 12 positions advertised internally, closing on 7th July 2020. He sought declarations that the process was irregular, unlawful and unconstitutional, an order quashing it, an order compelling adherence to the law in future recruitment, and costs. He argued the internal advertisement locked out qualified members of the public and violated Articles 3(1), 4(2), 10, 27, 41(1), 47(1), 73(2)(a) and 232(1)(a-f) of the Constitution, Section 5 of the Employment Act, 2007 and Section 37 of the Public Service Commission Act, 2017, together with his legitimate expectation. EACC, through a Replying Affidavit of Ellyjoy Bundi, maintained the decision was made at its 76th Special Meeting of 11th June 2020, was lawful and was supported by its Corporate Services Policies and Procedures Manual (Clauses 2.4.5, 2.4.6 and 2.4.8) and by Treasury Circular No. 7/2019 which froze new recruitments but not promotions. The 2nd Respondent was expunged from the proceedings on 6th October 2020. The court framed five issues and found the Petitioner had locus standi under Articles 22 and 258, but held that the EACC acted within its mandate in electing to fill the positions internally, that the process was competitive and merit-based, and that no constitutional or statutory violation was established. The Petition was dismissed with no orders as to costs, interim orders of 9th October 2020 suspending the recruitment were vacated, and the EACC was permitted to proceed with the recruitment forthwith.

Key legal issues

#
01

Locus standi of the Petitioner

Holding

The Petitioner has the requisite locus standi under Articles 22 and 258 of the Constitution, acting in the public interest

Reasoning

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.

p. 7
02

Legality and constitutionality of the internal recruitment process

Holding

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

Reasoning

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.

p. 8
03

Alleged violation of Articles 27, 41(1) and 47 and statutory provisions

Holding

No violation of the Constitution or statute was established since the recruitment process was well founded in law

Reasoning

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.

p. 8
04

Legitimate expectation

Holding

The court found no violation of legitimate expectation, having found the process lawful; no standalone analysis was undertaken

Reasoning

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.

p. 8

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. 1.The Petition dated 27th August 2020 is dismissed
  2. 2.No orders as to costs
  3. 3.The interim orders issued on 9th October 2020 suspending the process of filling the vacancies within the 1st Respondent are vacated
  4. 4.The 1st Respondent is at liberty to proceed with the recruitment process forthwith

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 79; Articles 3(1), 4(2), 10, 20, 22, 23(3), 27, 41(1), 47(1), 48, 50(1), 73(2)(a), 159(2)(d), 162(2), 165, 165(5), 232(1)(a-f), 246, 258
  • Ethics and Anti-Corruption Commission Act, 2011Section 3(1); Section 10
  • Employment Act, 2007Section 5(1), (2) and (3)
  • Public Service Commission Act, 2017Section 37(1-3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Sections 19 and 24
  • Employment and Labour Relations ActSection 12
  • Employment and Labour Relations Rules, 2016Rule 28
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Treasury Circular Number 7/2019 dated 28th June 2019clause 23
  • EACC Corporate Services Policies and Procedures Manual (July 2017)Clauses 2.4.5, 2.4.6, 2.4.8

Cases cited (22)

  • Timothy Otuya Afubwa & Another v County Government of Trans Nzoia & 3 Others
    (2016) eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another
    (2013) eKLR
  • Ms. Priscilla Nyokabi Kanyua v Attorney General & Another
    Nairobi HCCP No. 1 of 2010
  • Abdi Ahmed Abdi v CS Interior and Coordination of National Government & 7 Others
    H.C Petition No. 238 of 2015
  • Community Advocacy Awareness Trust & 8 Others v Attorney General & 6 Others
    (2012) eKLR
  • Okiya Omutatah Okoiti v Attorney General & 2 Others; Francis Muthaura (AMB) & 5 Others (Interested Parties)
    (2019) eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    (2014) eKLR
  • Dry Associates Ltd v Capital Markets Authority & Another
    (2012) eKLR
  • Henry Mutundu v Chairperson, Independent Electoral and Boundaries Commission & Another
    (2019) eKLR
  • David Kariuki Muigua v Attorney General & Another
    (2012) eKLR
  • Communication Commission of Kenya v Royal Media Services & 5 Others
    (2014) eKLR
  • Kevin K. Mwiti & Others v Kenya School of Law & 2 Others
    (2015) eKLR
  • Kenya Human Rights Commission v Communications Authority of Kenya & 4 Others
    (2018) eKLR
  • Erick Okeyo v County Government of Kisumu & 2 Others
    (2014) eKLR
  • Anarita Karimi Njeru v Republic
    (1979) KLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR
  • Geofirey Mworia v Water Resources Management Authority & 2 Others
    (2015) eKLR
  • Joseph Daniel Gitahi Maina v County Assembly of Nyeri Service Board & Another
    (2018) eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    (2013) eKLR
  • Kenya National Commission on Human Rights & Another v Attorney General & 3 Others
    (2017) eKLR
  • Republic v Director of Public Prosecutions & 4 Others Ex-Parte Senator Johnson Nduya Muthama
    (2015) eKLR
  • Republic v Kenya Revenue Authority ex-parte Shake Distributors Limited
    H.C Misc Civil Application No. 359 of 2012
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.