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ELRCAllowedPetition No E025 of 2022· [2022] KEELRC 133 (KLR)

Okinda Omondi v Cabinet Secretary, Ministry of Sports, Culture & Heritage & another; Cabinet Secretary, National Treasury & Planning & 3 others (Interested Parties) [2022] KEELRC 133 (KLR)

Employment and Labour Relations Court
28 April 2022
LNLINNET NDOLO
2,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court suspended the recruitment of a Sports Fund CEO because the Ministry failed to consult the Public Service Commission before advertising the job.

What this practically means

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Executive summary

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The Petitioner moved the Employment and Labour Relations Court by Notice of Motion dated 10th February 2022 seeking conservatory orders restraining the Respondents from proceeding with a vacancy notice for the position of Chief Executive Officer of the Sports, Arts and Social Development Fund, published in the Daily Nation of 17th January 2022 and on the 1st Respondent's website, together with an order staying or suspending the notice. The Petitioner argued that under the Mwongozo Code and the Human Resource Policies and Procedures Manual, only the Fund's Oversight Board in consultation with the Public Service Commission could declare the vacancy, and that the 1st Respondent had unilaterally altered the minimum qualifications. The 1st Respondent, through the Principal Secretary Joe Okudo, contended that the Fund is not a state corporation, that the Cabinet Secretary is the authorised officer over ministry staff, and that the advertisement complied with the law and Article 232 of the Constitution. The Public Service Commission, the 2nd Interested Party, supported the Petition, asserting that Regulation 12(2) of the Sports Fund Regulations, 2018 required competitive appointment in consultation with the Commission, which never occurred. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court found a prima facie case on the undisputed failure to consult the Commission, and irreparable injury because concluding the recruitment would dissipate the subject matter and accrue third party rights. The Motion succeeded; the vacancy notice was suspended until further orders, with costs in the Petition.

Key legal issues

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01

Prima facie case for conservatory/injunctive relief

Holding

The Petitioner established a prima facie case because Regulation 12(2) of the Sports Fund Regulations, 2018 required consultation with the Public Service Commission and the 1st Respondent adduced no evidence of such consultation.

Reasoning

The court adopted the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case. Both the Petitioner and the 2nd Interested Party raised the absence of consultation with the Public Service Commission before advertising the CEO position. The express wording of Regulation 12(2) placed the onus on the 1st Respondent to demonstrate compliance; none was adduced, which by itself satisfied the prima facie case threshold.

p. 4
02

Irreparable injury

Holding

The second Giella condition was satisfied because allowing the recruitment to conclude would dissipate the subject matter and accrue third party rights, making reversal or restitution almost impossible.

Reasoning

The court reasoned that if the recruitment continued to conclusion, the very process challenged in the Petition would be complete and persons appointed would hold accrued rights. Restitution or reversal would then be practically impossible, constituting irreparable injury not adequately compensable in damages. Having found the first two conditions satisfied, the court found it unnecessary to consider the balance of convenience.

p. 4

Legal principles established

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  • Where a regulation expressly requires appointment of staff in consultation with the Public Service Commission, the appointing authority must adduce evidence of that consultation; failure alone establishes a prima facie case
  • Where the impugned process, if allowed to conclude, would dissipate the subject matter and accrue third party rights, irreparable injury is established

Court orders

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  1. 1.Respondents restrained from proceeding with any processes under the vacancy notice titled 'Chief Executive Officer: Grade SASDF1' published in the Daily Nation Newspaper of 17th January 2022 and on the 1st Respondent's Website
  2. 2.The said vacancy notice stands suspended until further orders of the Court
  3. 3.Costs of the Motion to be in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 94(5), 232, 234(2)(a)(ii) and (g)
  • Public Finance Management Act, 2012Section 24
  • Public Finance Management (Sports, Arts and Social Development Fund) Regulations, 2018Regulations 3, 8, 10, 11, 12 and 12(2)
  • Public Service Commission Act, 2017Sections 36 and 37
  • Public Service Commission Regulations, 2020Regulation 13
  • State Corporations ActSections 7 and 30
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Mwongozo Code of Governance for State CorporationsRules 1.2 and 1.18
  • Human Resource Policies and Procedures Manual for the Public ServiceClauses B.3 and B.4
  • Executive Order Number 7dated 25th March 2015
  • Legal Notice No 194establishment of the Sports, Arts and Social Development Fund

Cases cited (2)

  • Giella v Cassman Brown & Co Ltd
    (1973) E.A
  • Mrao v First American Bank of Kenya & 2 others
    [2003] eKLR
Jurisdiction invoked
Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (conservatory orders to sustain the substance of the Petition)

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, "Okinda Omondi v Cabinet Secretary, Ministry of Sports, Culture & Heritage & another; Cabinet Secretary, National Treasury & Planning & 3 others (Interested Parties) [2022] KEELRC 133 (KLR)", Case Analysis (2022). Petition No E025 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/133/eng@2022-04-28

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