Okiya Omtatah Okoiti v Principal Secretary for Health, Board of Directors & 3 others [2022] KEELRC 425 (KLR)
The bottom line
#Kenya's Employment Court dismissed Omtatah's petition because he relied on documents obtained secretly, proving that how you gather evidence matters as much as what you claim.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of evidence obtained clandestinely from a state organ
Documents obtained without following the procedure under Article 35 and the Access to Information Act were unlawfully obtained and, relying on Article 50(4), were expunged because their admission would render the proceedings unfair and detrimental to the administration of justice
The Court found the Petitioner obtained internal memos and letters of KEMRI and the Principal Secretary without requesting them under the prescribed procedure, violating the Respondents' right to privacy of communications under Article 31. Applying Article 50(4) and the Supreme Court's guidance in Njonjo Mue, the Court excluded the documents. Their expunction left the petition without evidentiary substratum.
Whether the petition met the Anarita Karimi Njeru particularity threshold
The Petitioner failed to establish violations of Articles 1, 2, 3(1), 4(2), 10, 41(1), 47 and 73 with the requisite clarity and precision
The allegations that a repeat promotion exercise violated the rule of law, fair labour practices and fair administrative action were amorphous and lacked particulars of the affected employees, their qualifications and the nature and extent of the injury. The claim of conflict of interest under Article 73 failed because no specific leadership and integrity value was identified as breached.
Whether the Principal Secretary, Ministry of Health acted ultra vires
Although the PS was not the Accounting Officer for KEMRI under Section 67 of the Public Finance Management Act and had no mandate to suspend the promotions, she acted with the acquiescence and authority of the KEMRI Board, which requested the audit and adopted its report
The Director General requested the audit by letter dated 26th January 2021 and the Board adopted and implemented the audit team's report, so the impugned actions were ratified by the Board. The Court also found no conflict of interest established under Article 73, as no personal interest was alleged or identified.
Whether the petition qualified as public interest litigation
It did not; the substratum was an employment issue concerning staff promotions at KEMRI, and the Petitioner showed no benefit or detriment to the public at large
While Articles 22 and 258 confer broad standing and public interest litigation is ingrained in the jurisprudence, the Court has discretion to evaluate the public nature of a matter case by case. The Petitioner tendered no evidence of any complaint by any KEMRI employee and did not show why affected individuals could not file employment claims themselves; hence the petition lacked the critical public interest ingredient.
Legal principles established
#- Evidence obtained in violation of a Bill of Rights right is excluded if its admission would render the trial unfair or be detrimental to the administration of justice (Article 50(4))
- A party seeking redress for constitutional violation must plead with precision the provision infringed, the manner of infringement and the extent of the injury
- Articles 22 and 258 confer locus standi on every person, but whether a matter qualifies as public interest litigation is assessed on a case by case basis
Court orders
#- 1.The petition is dismissed in its entirety
- 2.The following documents are expunged from the record: internal advertisement dated 26th June 2020 (Exhibit 000-1 pages 28-96); internal memo from the Acting Director General (pages 97-98); letter dated 21st December 2020 from the Principal Secretary (page 99); letter dated 26th January 2021 from the Director General KEMRI (page 100); letter dated 31st March 2021 from the Principal Secretary (page 101); re-advertisement for promotions dated 17th and 20th September 2021 (pages 102-154); KEMRI Human Resources and Procedures Manual (pages 155-365); KEMRI Career Guidelines (pages 366-742)
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Articles 22, 23, 258 and 162(2)(a) of the Constitution of Kenya, 2010 (petition for enforcement of Bill of Rights; court as a court with jurisdiction over employment and labour relations)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kihara (Suing as a legal representative of Pricilla Wambui Kihara) v Mbagu & another (Environment & Land Case 1265 of 2016) [2024] KEELC 3559 (KLR)[2024] KEELC 3559 (KLR)11 Apr 2024
- Odongo v Radar Security Limited (Employment and Labour Relations Petition E033 of 2020) [2023] KEELRC 2909 (KLR)[2023] KEELRC 2909 (KLR)14 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Principal Secretary for Health, Board of Directors & 3 others [2022] KEELRC 425 (KLR)", Case Analysis (2022). Petition dated 26th October 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/425/eng@2022-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.