Bett v Governor Bomet County & 2 others; Salaries and Renumeration Commission (Interested Party) (Petition E001 of 2020) [2021] KEELRC 2432 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru competence threshold
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.
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.
Whether the respondents violated the Constitution
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.
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.
Whether the reliefs sought were merited despite the prior revocation of appointments
Declarations (i), (ii) and (iv) were granted, but surcharge and reimbursement were refused because the irregularity was corrected before suit.
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.
Legal principles established
#- 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
#- 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.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.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.Direction that each party shall bear own costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.