Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR)
The bottom line
#Kenya's Employment Court ruled that public officers can only be removed with stated reasons, and major policy changes require public participation.
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 petitioners have locus standi to institute the Petition seeking to enforce private law claims
- 2.Whether the Central Human Resource Management Postings Committee is valid vis-a-vis the PSC
- 3.Whether the appointment of the 2nd respondent as State House Chief of Staff and Head of Public Service by the President is ultra vires the Constitution
- 4.Whether there is constitutional and legal basis to remove persons employed by the PSC from office and appointment of others into office in the public service as effected by the 1st respondent assisted by the 2nd respondent
- 5.Whether the Policy on Decentralisation of Human Resource Management in the Civil Service is unconstitutional, an imposition on the PSC and contrary to articles 155(2) and 234 of the Constitution
- 6.Whether the Court should exercise its powers under article 23(3) of the Constitution to issue any other appropriate relief, including compensation for Mr Chepkwony, Mr Semelang'o and Mr Rugut
- 7.Who should bear costs
Key legal issues
#Locus standi and jurisdiction of the ELRC
The petitioners, as public spirited individuals, have standing under articles 22 and 258 of the Constitution and the ELRC has jurisdiction over disputes relating to appointment, transfer and removal in the public service
The court held that courts have moved away from strict standing rules in public law litigation, citing article 258 and the liberal approach in Priscilla Nyokabi Kanyua. The core complaints concerned appointment, transfer and removal of public officers and terms and conditions of civil servants, which are labour relations matters within the ELRC's jurisdiction under the ELRC Act, the Employment Act and article 162(2) and (3) of the Constitution.
Appointment of the 2nd respondent as State House Chief of Staff and Head of Public Service
The appointment is constitutional and lawful, being grounded in article 132(4)(a) of the Constitution, section 13 of the National Government Coordination Act and PSC approval
The President may establish an office in the public service in accordance with PSC recommendations and may establish offices in his private office. The PSC at its 2324th meeting approved establishment of the Chief of Staff post. The court endorsed prior decisions by Abuodha J and Ongaya J upholding the office and found the matter res judicata in part.
Removal of Semelang'o as Chairman of the YEDF Board and appointment of Bruce Odhiambo
The removal was unlawful for want of reasons under section 7(3) of the State Corporations Act read with article 47 of the Constitution, and the appointment of Odhiambo for a fresh three-year term was unlawful as it should have been for the remainder of Semelang'o's term
The President has power under section 7(3) of the State Corporations Act to revoke a board member's appointment, but only if it appears the Board has failed to carry out its functions in the national interest, and the decision must be supported by reasons per article 47. No reasons were given for the revocation. Further, the replacement appointment should have been for the remainder of the revoked member's period of office.
Transfer of Rugut as Director NYS and appointment of Dr Githinji
The transfer and subsequent appointment were lawful, effected under the PSC Code of Regulations section E.30 and the Central Human Resource Management Posting Committee framework
Transfer is a legitimate employer prerogative subject to being exercised lawfully and non-arbitrarily. Section E.30 of the PSC Code of Regulations permits transfers sanctioned by the Central Postings Committee for officers in Job Group 'P' and above. Article 155(2) empowered the Principal Secretary as administrative head. The court found the regulations reasonable and the transfer lawful.
Validity of the Central Human Resource Management Postings Committee
The Committee is a lawful structure under section 11(c) of the PSC Act and the PSC had not ceded its mandate
The Committee serves as a coordinating framework of authorised officers to transfer staff across ministries, exposing officers to diverse work experiences. The PSC limited it to oversight and appeals and had not ceded its mandate; section 11(c) of the PSC Act empowers the Commission to do all such things as necessary for effective discharge of its functions.
Appointment of Ayungo to the YEDF Board while serving as NYC Chairperson
The appointment was lawful and did not constitute double employment, being contemplated by the YEDF Order and the NYC Act
Section 5(2)(f) of the YEDF Order contemplates a person nominated by the National Youth Council and appointed by the Minister. The NYC is non-executive with a Secretary running daily affairs, so holding both positions is contemplated in law. The appointing authority for both was the Minister, and the Gazette Notices properly published the appointments.
Validity of the Policy on Decentralisation of Human Resource Management in the Civil Service
The Policy is invalid for want of public participation contrary to article 10 of the Constitution and section 58 of the PSC Act
While the PSC may delegate its functions under article 234(5), policy changes affecting stakeholders require public participation. Only internal stakeholders (line ministries and the Union of Civil Servants) were consulted; the wider public was not engaged. Article 10 values are justiciable and immediate, and the PSC Act requires the Commission to be guided by national values in its mandate.
Legal principles established
#- Revocation of appointment of a member of a state corporation board under section 7(3) of the State Corporations Act requires reasons and due process; a revocation without stated reasons is unlawful
- Where a board member's appointment is revoked, any replacement should be for the remainder of the revoked member's term unless the entire Board is reconstituted
- Public participation is imperative in policy changes likely to affect stakeholders; failure to publicise and consult the wider public invalidates a policy under article 10 of the Constitution and section 58 of the PSC Act
- Locus standi in public interest litigation is construed liberally; a petitioner bona fide acting in the public interest has standing under articles 22 and 258 of the Constitution
- Delegation of authority does not part with power; the principal remains responsible and accountable for delegated functions
Court orders
#- 1.Declaration that the removal of Mr Gor Evans Semelang'o as Chairman of the Board of the Youth Enterprise Development Fund and the subsequent appointment of Mr Bruce Odhiambo to replace him were unlawful
- 2.Declaration that the appointment of Bruce Odhiambo was unlawful and contrary to the provisions of section 7(3) of the State Corporations Act
- 3.Order quashing the Policy on the Decentralisation of Human Resource Management in the Civil Service, May 2014 for want of public participation
- 4.The Public Service Commission shall subject the Policy on Decentralisation of Human Resource Management in the Civil Service, May 2014 to public participation in its formulation and formation pursuant to article 10 of the Constitution and the Public Service Commission Act
- 5.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 258, 41 and 162(2) and (3) of the Constitution; Employment and Labour Relations Court Act, 2011; Bench constituted under article 165(4) of the Constitution pursuant to the direction of the Court of Appeal in Civil Appeal No 4 of 2015
- Consolidated with
- ELRC Petition No 27 of 2014
Relief refused
#Declaration that the removal of Rugut as Director NYS and appointment of Dr Nelson Githinji were null and void; orders quashing the transfer letter and restoring Rugut to office
The court found the transfer of Rugut by the 3rd respondent was lawful under the PSC Code of Regulations and the PSC Act
Declaration that the 2nd respondent's appointment as State House Chief of Staff and Head of Public Service is ultra vires the Constitution and prohibition restraining him from acting as Head of Public Service
The appointment was made in accordance with article 132(4) of the Constitution, the National Government Coordination Act and with PSC approval
Declaration that the dismissal of Samuel Chepkwony and appointment of Clement Ayungo were null and void; quashing Gazette Notice No 3021 and restoring Chepkwony
The court found Ayungo's appointment lawful and that holding both NYC and YEDF positions is contemplated in law
Order for compensation for Mr Chepkwony, Mr Semelang'o and Mr Rugut under article 23(3)
The court held the petitioners were acting in public interest and that declaratory orders would suffice
Order that the 1st respondent is unfit to hold public office
No finding of unfitness was made in the final orders; the reliefs granted were confined to the Semelang'o removal, Odhiambo appointment and the Decentralisation Policy
Costs
Each party shall bear own costs
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, on the analysis and findings above, the petition partially succeeds and judgement is entered in the following terms;
Declaration is hereby issued that the removal of Mr. Gor Evans Semelang'o as the Chairman of the Board of the Youth Enterprise Development Fund and the subsequent appointment of Mr. Bruce Odhiambo to replace him were unlawful;
An Order is hereby issued quashing the Policy on the Decentralisation of Human Resource Management in the Civil Service, May, 2014 for want of public participation;
Each party shall bear own costs.
There is jurisdiction and the petitioners have the requisite standing to urge the instant petition.
For want of reason(s), there was breach of section 7(3) of the State Corporations Act. Semalang'o was removed from ofice unlawfully.
The appointment of Bruce Odhiambo was unlawful and contrary to the provisions of section 7(3) of the State Corporations Act.
The Policy on Decentralisation of Human Resource Management in the Civil Service, May 2014 is hereby found invalid for want of public participation in its formulation and formation contrary to article 10 of the Constitution and section 58 of the PSC Act.
The Transfer of Rugut by the 3rd respondent by letter dated May 9, 2014 was lawful and in tandem with the definition assigned to a transfer under section 2 of the PSC Act;
Delegation does not imply parting with powers by the person who delegates but confers authority to do things which otherwise the person delegating would have to do himself.
Issues in the judgment
#Paragraph numbering anomaly: a passage in the Semelang'o discussion is numbered '71.' although paragraph 71 appears earlier, and its text ends mid-thought before resuming at paragraph 97
Inconsistent Gazette Notice details: the appointment of Semelang'o is described as Gazette Notice No 1828 of February 15, 2013 in one passage and February 5, 2013 in another
Gazette Notice No 2339 revoking Semelang'o is inconsistently dated February 27, 2014 in parts of the judgment and April 7, 2014 in another
Erroneous date reference: the judgment states article 41 and 162(2) and (3) of 'the Constitution, 2007' although the Constitution cited throughout is the 2010 Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Deputy County Commisioner - Kilungu & 5 others; Yulu (Ex parte Applicant) (Environment and Land Judicial Review Case E002 of 2023) [2026] KEELC 4718 (KLR)[2026] KEELC 4718 (KLR)23 Jul 2026applied
- Mulinge v Cabinet Secretary, Ministry of Lands and Physical Planning & 5 others (Environment and Land Judicial Review Case E016 of 2025) [2026] KEELC 4700 (KLR)[2026] KEELC 4700 (KLR)23 Jul 2026
- KIvivya (Suing as the legal representative of the Estate of Cyril Kimet Mwevya - Deceased) v Deputy County Commissioner, KilunguSub-County (As a delegate of the Cabinet Secretary for Lands and Physical Planning) & 2 others; Kituma & another (Interested Parties) (Environment and Land Judicial Review Case 4 of 2024) [2026] KEELC 555 (KLR)[2026] KEELC 555 (KLR)9 Feb 2026applied
- Ngetich v KCB Bank Kenya Limited (Employment and Labour Relations Cause 1148 of 2018) [2023] KEELRC 3274 (KLR)[2023] KEELRC 3274 (KLR)7 Dec 2023
Cite this brief
#Cite this brief
Caselaw, "Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR)", Case Analysis (2021). ELRC Petition No 42 of 2014 consolidated with ELRC Petition No 27 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2306/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.