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ELRCDismissedPetition dated 20th April 2022 (Nakuru ELRC)· [2022] KEELRC 1406 (KLR)

Muthui v Secretary County Service Board, Nyandarua County Assembly & another (Petition E004 of 2022) [2022] KEELRC 1406 (KLR)

Employment and Labour Relations Court
30 June 2022
HWHellen Wasilwa
5,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a challenge to Nyandarua County Assembly's clerk recruitment because the faulty job advert had already been corrected, and no contempt occurred.

What this practically means

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Executive summary

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The Petitioner, a former employee of the Nyandarua County Assembly, petitioned the Employment and Labour Relations Court challenging an advertisement of 12th April 2022 for the position of Clerk of the Nyandarua County Assembly, contending that the advertised qualifications went beyond those prescribed by section 13(2) of the County Government Act and violated Articles 10, 73(2) and 232 of the Constitution. She sought declarations, certiorari to quash the advertisement, a permanent injunction against recruitment, a declaration that the recruitment was sub-judice given pending litigation (Nakuru ELRC Petition No. E028 of 2021), and costs. She also applied to have the Board's chairperson and secretary cited for contempt and fined Kshs.500,000 for allegedly re-advertising the position contrary to conservatory orders issued on 21st April 2022. The Respondents countered that they had themselves detected the error, withdrawn the offending advertisement and re-advertised the position on 26th April 2022 in conformity with section 13(2) of the County Government Act, arguing the petition was moot and that the orders of 21st April 2022 had not barred making a fresh advertisement. The court framed two issues: whether the orders sought could lie, and whether the Respondents were in contempt. It held the petition was overtaken by events since the defective advertisement had been corrected, and that the conservatory orders did not prohibit correcting or re-publishing the advert, so no contempt was proved. The petition was dismissed in its entirety with no order of costs.

Key legal issues

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01

Whether the orders sought in the Petition (declarations, certiorari, injunction) could lie

Holding

The Petition fails; the offending advertisement was withdrawn and replaced with one conforming to section 13(2) of the County Government Act, leaving no live issue.

Reasoning

The court noted the Respondents conceded the advert was wrongly done and corrected the error of their own motion. The Conservatory orders of 21st April 2022 restrained interviews, gazettement and recruitment but did not bar correcting or re-publishing the advert. Consequently the main petition was overtaken by events and, in the court's view, lacked merit in its entirety.

p. 10
02

Whether the Respondents' officers were in contempt of the orders of 21st April 2022

Holding

No contempt: the orders did not prohibit making a fresh advert, and no breach was established.

Reasoning

The order of 21st April 2022 was clear and unambiguous, restraining only interviews, background checks, gazettement, offering employment contracts and assigning duties. The court held it did not bar correcting or making a fresh advert. The alleged offending advert was also not produced in evidence, and the elements of contempt, including deliberate breach to the required standard, were not proved.

p. 10

Legal principles established

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  • A party rectifying a defective advertisement to conform with the governing statute, where a court order has not barred such correction, is not in contempt of court.
  • A constitutional petition founded on an advertisement that has been withdrawn is overtaken by events and may be dismissed as moot.

Court orders

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  1. 1.The Petition is dismissed in its entirety for lack of merit.
  2. 2.There will be no order of costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 73(2)
  • Constitution of KenyaArticle 232
  • Constitution of KenyaArticle 10(1) and 10(2)
  • Constitution of KenyaArticle 3
  • Constitution of KenyaChapter Six (leadership and integrity)
  • County Government ActSection 13(2)
  • Leadership and Integrity ActSections 3 and 8
  • Public Officers Ethics ActSection 17
  • Evidence ActSections 107 and 108

Cases cited (12)

  • Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others
    [2019] eKLR
  • Sceneries Limited versus National Land Commission
    (2017) eKLR
  • Davis Mokaya Ondimu Versus Attorney General & 3 Others
    (2021) eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] eKLR
  • Stephen Gachau Githaiga and others v Attorney General
    [2015] eKLR
  • Henry Mututndu v Chairperson, Independent Electoral and Boundaries Commission & another; Attorney General (Interested party)
    [2019] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 others (Interested parties)
    [2020] eKLR
  • Katsuri Limited v Kaprchand Depar Shah
    [2016] eKLR
  • Samuel M.N Mweru and other v National Land Commission & 2 others
    [2020] eKLR
  • Sheila Cassat Issenberg and another v Antony Machather Kinyanjui
    [2021] eKLR
  • Gatharia K. Mutikika v Baharini Farm Limited
    [1985] KLR 227
  • Trust Bank Limited Vs Paramount Universal Bank Limited & 2 others
Jurisdiction invoked
Constitution of Kenya, Articles 73(2), 232, 10; County Government Act section 13(2) (constitutional petition under the bill of rights)

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, "Muthui v Secretary County Service Board, Nyandarua County Assembly & another (Petition E004 of 2022) [2022] KEELRC 1406 (KLR)", Case Analysis (2022). Petition dated 20th April 2022 (Nakuru ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1406/eng@2022-06-30

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