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ELRCPartially AllowedNot stated in the judgment (petition amended June 22, 2021)

Okoiti v Attorney General & another (Petition E101 of 2020) [2022] KEELRC 2 (KLR)

Employment and Labour Relations Court of Kenya
17 February 2022
JRJames Rika
11,591 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court declared it has exclusive jurisdiction over judge-appointment disputes and that the President cannot send judicial nominees to Parliament for approval.

What this practically means

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Executive summary

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In a petition amended on June 22, 2021, Okiya Omtatah Okoiti sought declarations that the Employment and Labour Relations Court has exclusive original jurisdiction over disputes concerning recruitment and appointment of all State Officers including judges; that the President does not play a ceremonial role in appointing judges; that article 132(2)(f) obliges the President to submit JSC judicial nominees, including the 6 of 41 nominees he had declined to appoint, to the National Assembly for approval; and an order compelling the President to do so. The Attorney-General objected on jurisdiction and sub judice grounds. The court framed six issues and allowed prayer A, declaring the E&LRC seized of exclusive original jurisdiction over appointment and recruitment disputes concerning judges, reasoning that judges are State Officers in gainful employment - they are issued letters of appointment, earn remuneration, pay PAYE and file P9 returns - and that 'employment' is a dynamic concept not confined to an employer-employee relationship. The court declined, out of comity, to determine prayers A1 and A2 because the President's appointment power is live before the Court of Appeal. It declared that article 132(2)(f) does not apply, and should never apply, to the appointment of judges, holding that the JSC, not the National Assembly, is the repository of the people's sovereign power in judicial appointments and that the President cannot dismiss judges, removal proceeding only under article 168. The legitimate expectation claim failed, and the court made no order on costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is sub judice
  2. 2.Whether the E&LRC has original and exclusive jurisdiction on the subject matter
  3. 3.Whether article 132(2) of the Constitution applies to appointment of Judges of superior courts
  4. 4.Whether the recommendations of the JSC on appointment of Judges bind the President or whether the President's role is purely ceremonial
  5. 5.Whether the President should be compelled to submit the names of the 41 (remaining 6) nominees for appointment as Judges of superior courts to the National Assembly for vetting and approval
  6. 6.Whether the President has violated the petitioner's legitimate expectation; whether the President should pay costs; and whether any other suitable relief should issue

Key legal issues

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01

Whether the E&LRC has exclusive original jurisdiction over disputes on recruitment and appointment of State Officers including Judges

Holding

Yes - prayer A was allowed; judges are in gainful employment and their appointment disputes fall within the E&LRC's jurisdiction

Reasoning

The court held that judges, as State Officers, are in gainful employment under article 77(1); they receive remuneration, are issued letters of appointment, pay PAYE and file P9 returns. Employment for constitutional purposes means the world of paid work, not merely a contract of service. Relying on Kamket, Trusted Society, Mugendi and Karisa Chengo, the court concluded appointment and recruitment disputes concerning judges fall within the E&LRC's exclusive jurisdiction.

p. 29
02

Whether article 132(2)(f) applies to appointment of Judges of superior courts

Holding

No - the court declared article 132(2)(f) does not and should never apply to appointment of judges

Reasoning

Article 132(2) officers are principally officers of the Executive Branch appointed at presidential prerogative without competitive recruitment or set constitutional standards. Judges, by contrast, are rigorously vetted, interviewed and nominated by the JSC, which holds the sovereign power of the people under article 1(3)(c). Reading article 132(2)(f) into article 166(1)(b) would disturb separation of powers and politicise the judiciary. Nor can the President dismiss judges, as removal proceeds only under article 168.

p. 21
03

Whether the petition is sub judice

Holding

Partially - prayers A1 and A2 raise issues live before the Court of Appeal, so the court declined to determine them, but determined the jurisdiction question and the article 132 issue

Reasoning

The President's power to appoint judges and the binding nature of JSC recommendations were before the Court of Appeal in the appeals from the Njenga and Katiba petitions. The court deferred on those issues but, invoking kompetenz kompetenz, retained jurisdiction to determine the E&LRC's own jurisdiction and the distinct article 132 question not primary before the appellate court.

p. 18
04

Whether the petitioner's legitimate expectation was violated

Holding

No - the doctrine was not made out

Reasoning

Legitimate expectation is predicated on regular, consistent and predictable conduct of the decision-maker. The petitioner relied merely on the President's duty to act fairly and did not demonstrate a past benefit or advantage he had been permitted to enjoy that was frustrated. The claim was therefore unsustainable.

p. 29

Legal principles established

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  • Every court has competence, under the principle of kompetenz kompetenz, to determine whether it is seized of jurisdiction, even where another court has declared its own exclusive jurisdiction
  • The E&LRC has exclusive original jurisdiction over disputes concerning recruitment and appointment/employment of State Officers, including judges of the superior courts, because judges are in gainful employment
  • Article 132(2)(f) of the Constitution does not apply to the appointment of judges of superior courts
  • The jurisdiction of the E&LRC extends to employment in the wide sense - the world of paid work - and is not confined to the narrow employer-employee relationship
  • The President has no power to dismiss a judge; removal of judges proceeds only under article 168 through the JSC and a tribunal

Court orders

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  1. 1.Prayer A in the amended petition, seeking declaration that the Employment and Labour Relations Court has exclusive original jurisdiction as the court of first instance over all disputes concerning the recruitment and appointment/employment of all State Officers, including judges of the superior courts, is allowed
  2. 2.The court defers to the appellate jurisdiction by declining to adjudicate on prayers A1 and A2, which relate to issues before the Court of Appeal
  3. 3.It is declared that article 132(2)(f) of the Constitution of Kenya does not apply, and should never apply, in the appointment of judges of superior courts, and prayers A3, B and C of the Amended Petition are declined
  4. 4.No order on the costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JR
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 162(2)(a), 165(3)(d) and (5)(b) and 258 of the Constitution read with section 12 of the Employment and Labour Relations Court Act, No 20 of 2011

Relief refused

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Declaration that the President does not perform a ceremonial role in the appointment of Judges (Prayer A1)

The issue is pending before the Court of Appeal and the court deferred to the appellate jurisdiction

p. 30

Declaration that article 166(2), (3), (4) and (5) places an obligation on the President to cross-check eligibility of nominees (Prayer A2)

The issue is live at the Court of Appeal

p. 18

Declaration that disputes under article 132(2)(f) be adjudicated by the National Assembly and an order compelling the President to present the names of the 6 declined nominees to the National Assembly (Prayers A3, B, C)

Article 132(2)(f) does not apply to the appointment of judges; the JSC, not the National Assembly, is the repository of the people's sovereign power in judicial appointments

p. 30

Claim of violation of legitimate expectation

The petitioner did not show any past benefit or advantage permitted by the President that was frustrated

p. 29

Costs of the petition

The court made no order on costs

p. 8

Costs

No order on the costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Prayer A. in the amended petition, seeking declaration that, the Employment and Labour Relations Court has exclusive original jurisdiction as the court of first instance, over all disputes concerning the recruitment and appointment/ employment of all State Oficers, including judges of the superior courts, is allowed.
p. 30Disposition - jurisdictional declaration allowed
It is declared that article 132[2][f] of the Constitution of Kenya, does not apply, and should never apply, in the appointment of judges of superior courts, and prayers A3 B C of the Amended Petition are declined.
p. 30Disposition - article 132(2)(f) declaration and refusal of prayers
No order on the costs.
p. 8Costs order
The court would wish to restate that all courts have a duty, to determine questions of their jurisdiction, under the principle of kompetenz kompetenz, even where another court, has declared its own exclusive jurisdiction.
p. 29Kompetenz kompetenz
The role of the peoples’ watchdog in appointment of judges of the superior court, is vested in the Judicial Service Commission, not in the National Assembly.
p. 19Separation of powers in judicial appointments
If they are in gainful employment, exclusive jurisdiction is with the E&LRC in disputes involving their employment.
p. 29Judges as persons in gainful employment
Employment, is a dynamic concept, which cannot be simplified to mean an employer-employee relationship.
p. 29Scope of employment jurisdiction

Issues in the judgment

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minor

The judgment appears to contain a drafting slip in the E&LRC Act jurisdiction passage, mixing numbered limbs mid-sentence

minor

The judgment contains an uncertain word rendering in the quotation from Sammy Ndungu Waity v IEBC

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okoiti v Attorney General & another (Petition E101 of 2020) [2022] KEELRC 2 (KLR)", Case Analysis (2022). Not stated in the judgment (petition amended June 22, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/2/eng@2022-02-17

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