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ELRCPartially AllowedNot stated in judgment (ELRC Petition, Nakuru)· [2021] KEELRC 2432 (KLR)

Bett v Governor Bomet County & 2 others; Salaries and Renumeration Commission (Interested Party) (Petition E001 of 2020) [2021] KEELRC 2432 (KLR)

Employment and Labour Relations Court
18 November 2021
3,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed county governors cannot create unofficial advisor posts, but refused to punish Bomet County because it had already revoked the illegal appointments.

What this practically means

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Executive summary

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The petitioner, a Bomet County resident and Advocate, petitioned under Article 258 of the Constitution alleging that the respondents unlawfully created offices in the County Public Service and appointed persons to amorphous positions of Advisors, Special Advisors, Directors and Personal Assistants in the Governor's, Deputy Governor's and County Secretary's offices without SRC authorisation, planning, budgeting or competitive recruitment. He sought declarations of invalidity, a declaration that SRC advisories capping personal staff are binding, a part-time terms-of-service declaration, a declaration of gross constitutional violation, surcharge of the 3rd respondent's members and recovery of monies spent. The 1st and 2nd respondents contended the petition lacked precision, was premature, and was moot since corrective measures had been taken under the County Governments Act before suit. The 3rd respondent and SRC did not participate after Wasilwa J's 13/7/2021 conservatory orders. The court framed three issues: competence threshold, constitutional violation, and reliefs. Applying Anarita Karimi Njeru and Mumo Matemu, it held the petition met the competence threshold given the public interest. It found that five appointments made on 4.5.2020 violated Articles 10, 73, 232 and 235 of the Constitution, but placed blame solely on the 3rd respondent, the body with the statutory recruitment mandate. The appointments had been revoked on 30.6.2020 under section 75 of the County Governments Act, before the suit. The court granted declarations in terms of prayers (i), (ii) and (iv) but declined prayers (iii), (v), (vi) and (vii), holding it lacked jurisdiction to set terms of service, only the 3rd respondent was culpable, and no deliberate defiance was shown to warrant surcharge. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru competence threshold

Holding

The petition pleaded the constitutional provisions infringed and the manner of infringement with sufficient precision, despite imprecision on which irregular staff remained on the payroll.

Reasoning

The court applied Anarita Karimi Njeru and Mumo Matemu, noting particulars of violation were set out in paragraphs 21 to 27 of the petition. Although no particulars were given of irregularly appointed staff still on the payroll, the court found the pleading enabled inquiry into the merits, and stressed that in public-interest litigation courts should endeavour to sustain suits.

p. 7
02

Whether the respondents violated the Constitution

Holding

Yes, five appointments made on 4.5.2020 were irregular and unconstitutional, but the blame lay with the 3rd respondent (the County Public Service Board), not the Governor or County Government.

Reasoning

The court found as fact that five advisory/management offices were created without legal establishment or filled by direct appointment rather than competition, violating Articles 10, 73, 232 and 235 of the Constitution. However, recruitment is the statutory mandate of the County Public Service Board under sections 58 and 59 of the County Governments Act, so blame attached solely to the 3rd respondent.

p. 7
03

Whether the reliefs sought were merited despite the prior revocation of appointments

Holding

Declarations (i), (ii) and (iv) were granted, but surcharge and reimbursement were refused because the irregularity was corrected before suit.

Reasoning

The appointments were revoked on 30.6.2020 under section 75 of the County Governments Act, before the petition was filed. The petitioner produced no evidence that other irregularly appointed staff remained on the payroll. Consequently, while the constitutional violation was declared, no surcharge or recovery order issued.

p. 8

Legal principles established

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  • Advisories by the Salaries and Remuneration Commission capping personal staff in a Governor's, Deputy Governor's and County Secretary's office bind all state organs including county governments.
  • A county public service board may revoke decisions or processes made in an irregular or fraudulent manner under section 75 of the County Governments Act.
  • In public-interest litigation, a court should lean towards sustaining a suit rather than terminating it for want of precision.

Court orders

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  1. 1.Declaration in terms of prayer (i) - that any appointment of advisors/special advisors/directors/personal assistants in the Bomet County Public Service lacking legal authority for its establishment is invalid, illegal, null and void.
  2. 2.Declaration in terms of prayer (ii) - that advisories by the Salaries and Remuneration Commission capping the number of personal staff in the office of the Governor, Deputy Governor and County Secretary are binding on all state organs including the respondents.
  3. 3.Declaration in terms of prayer (iv) - that the 3rd Respondent, by unlawfully and irregularly appointing persons to act in offices not authorised in the county staff establishment, improperly exercised public power and abused its office.
  4. 4.Direction that each party shall bear own costs.

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 3(1), 10, 73, 201(d), 226(5), 230, 230(4), 232(1), 232(e) and (f), 235, 258, 259(11)
  • County Governments ActSections 30, 44, 58, 59, 60, 62, 75, 77

Cases cited (2)

  • Anarita Karimi Njeru -v- Republic
    [1979] eKLR
  • Mumo Matemu -v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Article 258 of the Constitution (enforcement of the Constitution; petition also anchored on Articles 2(1), 3(1), 10, 201(d), 226(5), 230, 232(1), 235, 258 and 259(11))

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, "Bett v Governor Bomet County & 2 others; Salaries and Renumeration Commission (Interested Party) (Petition E001 of 2020) [2021] KEELRC 2432 (KLR)", Case Analysis (2021). Not stated in judgment (ELRC Petition, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2432/eng@2021-11-18

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