Tome v Bungoma County Assembly & 5 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E011 of 2021) [2022] KEELRC 1106 (KLR)
The bottom line
#Kenya's Employment Court struck out a challenge to a Bungoma County board appointment because the petitioner skipped the required appeal to the Public Service Commission first.
What this practically means
#Executive summary
#Key legal issues
#Locus standi
The Petitioner has locus standi despite not having applied for the impugned position, since the Constitution liberalised standing to enhance access to justice.
The court accepted the Petitioner's reliance on Articles 22 and 258 of the Constitution, which grant every person the right to move the court in the public interest where a Bill of Rights is violated or threatened, and on the liberal approach to locus standi espoused in the Kinyanjui decision. Whether the petition has merit remains a matter for a merits hearing.
Conflict of interest as a ground of preliminary objection
Alleged conflict of interest and bad faith by the Petitioner is not a proper ground for a preliminary objection because it raises factual matters.
A preliminary objection can only be raised on a pure question of law and cannot be raised if any fact has to be ascertained. The alleged conflict of interest required ascertainment of facts, including the timing of the Petitioner's dismissal relative to the filing of the petition, so it was not a proper ground.
Suitability of grievances for a constitutional petition
Whether the grievances fall outside a constitutional petition under Article 23 is not a proper point for a preliminary objection.
The court held that the question whether the gravamen of the petition falls within constitutional litigation, given allegations of abuse of legislative authority under Article 185 read with Section 14(3) of the County Governments Act and contravention of Article 77(2), could not be resolved on a preliminary objection.
Exhaustion of alternative remedies and jurisdiction
The court lacks jurisdiction because the gravamen of the petition is a challenge to a recruitment process, which must first be appealed to the Public Service Commission under Section 77(2) of the County Governments Act read with Section 87(2) of the Public Service Commission Act.
The court identified the gravamen of the petition as a challenge to the recruitment process leading to the appointment of the 5th Respondent. Relying on the Court of Appeal's decision in Secretary County Public Service Board v Hulbai Gedi Abdille, which it held bound it, the court found the petition premature and struck it out together with the amended Notice of Motion.
Legal principles established
#- Any challenge to a county public service board's recruitment decision must in the first instance be pursued by appeal to the Public Service Commission under Section 77 of the County Governments Act before court intervention.
- A court without jurisdiction must down its tools.
Court orders
#- 1.The Notice of Preliminary Objection dated 23rd February 2022 is upheld on ground of lack of jurisdiction.
- 2.The amended Notice of Motion and the Petition dated 19th November 2021 are struck out for failure to exhaust the appellate mechanism under Section 77 of the County Governments Act as read together with Section 87(2) of the Public Service Commission Act.
- 3.Each party to meet its own costs.
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition under Articles 22 and 23); objection on jurisdiction under Section 77 of the County Governments Act read with Section 87(2) of the Public Service Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tome v Bungoma County Assembly & 5 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E011 of 2021) [2022] KEELRC 1106 (KLR)", Case Analysis (2022). Petition No E011 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1106/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.