Okumu & 8 others v Badi, Director General Nairobi Metropolitan Services & 15 others; Nairobi City County & 12 others (Interested Parties); Okoiti (Exparte) (Petition 94 of 2020 & Miscellaneous Civil Application 60 of 2020 (Consolidated)) [2022] KEELRC 1 (KLR)
The bottom line
#Kenya's Employment Court voided NMS's appointment of new Nairobi Water directors, ruling the appointments skipped required recruitment and fair-hearing procedures.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over appointment and removal of board members and a corporation secretary
The ELRC has jurisdiction; the Court of Appeal decision limiting ELRC jurisdiction concerned independent commissions only, and removal of the corporation secretary raised employment issues giving concurrent jurisdiction.
The court distinguished the Court of Appeal's Omtatah decision as confined to commissioners of independent commissions. It held section 12(1)'s 'including' makes the listed categories non-exhaustive and that 'employment' should be purposively and inclusively read to cover remunerated engagements by salary, wages or allowances, including board members. The inclusion of a corporation secretary, an employee, made this a 'mixed grill' case, and splitting the suits would not serve the public interest.
Whether the removal of directors and appointment of new directors and company secretary violated the Constitution, statutes and guidelines
Yes - the appointments were made without authority and were null and void, unconstitutional and unlawful.
NMS as majority shareholder could not bypass the Corporate Governance Guidelines requiring competitive, transparent recruitment through advertisement and a select committee, nor remove directors without the hearing required by article 47 and section 4 of the Fair Administrative Actions Act, nor ignore section 139 of the Companies Act and the company's Articles of Association. The respondents' own averments that they had exclusive power to appoint and remove directors amounted to an admission of violation.
Locus standi of the ex parte applicant
The objection was treated as abandoned since it was not pursued in submissions.
The respondents raised locus standi and jurisdiction objections, but in submissions no mention was made of the applicant's locus standi, so the court assumed the ground had been abandoned and dealt only with jurisdiction.
Legitimate expectation of the petitioners to serve their full term
The appointments infringed the petitioners' legitimate expectation to serve until their terms lapsed or they were lawfully removed after a fair hearing.
Having been appointed for a three-year term through a lawful competitive process, the petitioners had a legitimate expectation that removal would follow due process, including a hearing to establish poor performance or misconduct as required by the appointment letter's termination clause and the Fair Administrative Actions Act.
Legal principles established
#- The word 'including' in section 12(1) of the ELRC Act shows the listed disputes are not conclusive; the court's jurisdiction extends beyond them.
- Employment under article 162(2)(a) should be interpreted inclusively to cover engagement for personal services remunerated by salary, wages or allowances, including board members of state institutions.
- Payment of allowances rather than salary does not negate an employment relationship with the state.
- Appointments to public office must comply with the constitutional values and principles in articles 10 and 232 of the Constitution.
- Appointments of directors of a water company made outside the framework of the Constitution, Water Act, Corporate Governance Guidelines, Companies Act and Fair Administrative Actions Act are null and void.
Court orders
#- 1.An order of certiorari quashing the 1st respondent's Kenya Gazette Notice No 4233 dated 19th June 2020, the 1st respondent's letter dated 17th June 2020 to the 12th respondent and the 1st respondent's letter dated 19th June 2020 to the petitioners and to the 2nd to 4th interested parties
- 2.A declaration that the Kenya Gazette Notice No 4233 dated 19th June 2020 appointing new directors and the 1st respondent's letters of 17th and 19th June 2020 were an illegality null and void ab initio
- 3.A declaration that the 1st and 2nd respondents have no locus standi and/or authority to appoint directors and/or directly manage the 12th respondent
- 4.A perpetual mandatory injunction and prerogative order of prohibition restraining the respondents from interfering with the management and operations of the 12th respondent and/or the appointment of its directors
- 5.A conservatory order by way of permanent injunction restraining the 1st and 2nd respondents from interfering with the operations and/or management of the 12th respondent
- 6.A conservatory order by way of permanent injunction restraining the 3rd to 11th respondents from taking over the management of the 12th respondent as its directors
- 7.A conservatory order by way of permanent injunction restraining the 13th respondent from making changes in respect of the directorship contained in the 1st respondent's letter dated June 17, 2020
- 8.The 1st and 2nd respondents shall bear the costs of the petitioners; no order for costs in the Miscellaneous Judicial Review Application as it was filed in the public interest
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chere v Board of Directors Lake Basin Development Authority & 4 others; Lake Basin Development Authority & 120 others (Interested Parties) (Petition E048 of 2024) [2025] KEELRC 1815 (KLR)[2025] KEELRC 1815 (KLR)23 Jun 2025
- Chere v Board of Directors Lake Basin Development Authority & 4 others; Lake Basin Development Authority & 120 others (Interested Parties) (Petition E048 of 2024) [2025] KEELRC 1815 (KLR)[2025] KEELRC 1815 (KLR)23 Jun 2025followed
- Okoiti v Cabinet Secretary, Industry, Trade and Co-operatives & 13 others; Kenya Bureau of Standards (Interested Party) (Petition 19 of 2020) [2022] KEELRC 1416 (KLR)[2022] KEELRC 1416 (KLR)25 May 2022followed
Cite this brief
#Cite this brief
Caselaw, "Okumu & 8 others v Badi, Director General Nairobi Metropolitan Services & 15 others; Nairobi City County & 12 others (Interested Parties); Okoiti (Exparte) (Petition 94 of 2020 & Miscellaneous Civil Application 60 of 2020 (Consolidated)) [2022] KEELRC 1 (KLR)", Case Analysis (2022). Consolidated: Judicial Review Miscellaneous Application and Petition dated June 23, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.