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ELRCPartially AllowedPetition filed herewith (chamber summons dated 1st April, 2022)· [2022] KEELRC 1360 (KLR)

Biwott v County Public Service Board Baringo County & another (Constitutional Petition E010 of 2022) [2022] KEELRC 1360 (KLR)

Environment and Land Court
29 July 2022
ANAbuodha Jorum Nelson
2,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court halted Baringo County's mass hiring of 600 staff because the county's wage bill risked breaking Kenya's legal spending limits.

What this practically means

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Executive summary

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The petitioner, through a chamber summons dated 1st April 2022, sought interim conservatory orders restraining the Baringo County Public Service Board from proceeding with the recruitment of over 600 staff advertised in the Daily Nation on 17th March 2022, pending the hearing of his petition. The petitioner, invoking Articles 22(1), 258, 176, 190 and 201 of the Constitution and Regulations 25(a) and (b) of the Public Finance Management (County Government) Regulations 2015, contended that the mass recruitment would breach the statutory wage bill ceiling and contravene fiscal responsibility principles. He relied on an advisory dated 23rd March 2022 from the County Budget Coordinator indicating a projected wage bill of 46.3% of total County revenue, above the 35% ceiling, and recommending piecemeal recruitment. The respondents, through the Acting County Secretary, countered that the application was conjecture based on an outdated 2020/21 budget, that the current wage bill was approximately 30% of a Ksh. 9.9 billion budget, and that the petitioner had shown no right under threat or prejudice. Both parties filed submissions relying on authorities. The court, adopting the test that it must merely evaluate whether a prima facie case is made out without definitive findings, held that the Controller of Budget advisory, issued under constitutionally conferred power, could not be dismissed as strange or bad faith without credible grounds. Applying the Supreme Court's guidance in Gatirau Munay, the court found that public interest and constitutional values favoured granting the orders. The court granted prayer 3, halting the recruitment pending determination of the petition, and directed that the petition be fast tracked.

Key legal issues

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01

Whether the Controller of Budget advisory on the Baringo County wage bill could be disregarded

Holding

The advisory, issued under constitutionally delegated power, could not be dismissed as strange or ill-timed without credible and valid grounds; the respondent had not alleged forgery or lack of authority

Reasoning

The court found that the County Budget Coordinator wrote the advisory exercising delegated power conferred by Article 228 of the Constitution. The respondent only questioned the timing and good faith of the letter, without alleging it was forged or written without authority. An advisory by a constitutional officer must be met with credible and valid grounds, not mere characterization.

p. 5
02

Whether the applicant established a prima facie case for conservatory orders

Holding

Yes - the public interest and constitutional values raised in the petition (fiscal responsibility, wage bill ceiling) leaned in favour of granting conservatory orders

Reasoning

Applying the interlocutory standard, the court evaluated the material before it, including the Controller of Budget advisory showing a projected wage bill of 46.3% of total County revenue against the 35% ceiling. The constitutional values and public interest implicated by the mass recruitment favoured preservation of the status quo pending full hearing.

p. 6
03

Whether urgency of recruitment justified proceeding despite constitutional and statutory safeguards

Holding

No - even where positions are essential for service delivery, urgency cannot override constitutional and statutory safeguards protecting public finance

Reasoning

The court acknowledged the respondent's claim that the positions were essential for effective service delivery, but held that such urgency must operate within the constitutional and statutory safeguards designed to protect public finance from misallocation. The need for staff does not authorize recruitment in breach of the wage bill ceiling.

p. 5

Legal principles established

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  • In considering an application for conservatory orders the court makes no definitive findings of fact or law but examines whether a prima facie case is made out and whether denial would prejudice the applicant
  • Conservatory orders are granted on the inherent merits of the case bearing in mind public interest and constitutional values
  • A constitutional advisory by an officer exercising constitutionally conferred power cannot be dismissed without credible grounds

Court orders

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  1. 1.Conservatory order restraining the 1st respondent from considering, deliberating, short listing, interviewing, selecting and appointing any persons in the recruitment exercise of over 600 staff advertised on 17th March 2022, pending hearing and determination of the Petition
  2. 2.Parties directed to fast track the petition for hearing and disposal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 176, 176(2), 190, 201, 201(b)(i), 201(d), 228, 228(5), 258
  • Public Finance Management (County Government) Regulations, 2015Regulations 25(a) and (b), 25(1)(b)

Cases cited (5)

  • Duncan Karuiki Gitau & 2 Others –v Lamu County Public Service Board & Another
    Pet. No. E005 of 2021
  • Mumo Matemo –v- Trusted Society of Human Rights Alliance
    [2014] eKLR
  • Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 others
    [2014] eKLR
  • Platinum Distillers –v- Kenyan Revenue Authority
    [2019]
  • Gatirau Munay v Dickson Mwenda Kithinku & 2 Others
    [2014] eKLR
Jurisdiction invoked
Article 22(1) and 258 of the Constitution of Kenya, 2010

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, "Biwott v County Public Service Board Baringo County & another (Constitutional Petition E010 of 2022) [2022] KEELRC 1360 (KLR)", Case Analysis (2022). Petition filed herewith (chamber summons dated 1st April, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1360/eng@2022-07-29

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