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ELRCPartially AllowedPetition No. E094 of 2020 (as context indicates an ELRC petition; judgment does not print its own number)· [2022] KEELRC 1416 (KLR)

Okoiti v Cabinet Secretary, Industry, Trade and Co-operatives & 13 others; Kenya Bureau of Standards (Interested Party) (Petition 19 of 2020) [2022] KEELRC 1416 (KLR)

Employment and Labour Relations Court
25 May 2022
13,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~56 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cancelled the handpicked KEBS board and CEO appointments, ruling public jobs must be filled through transparent, merit-based recruitment.

What this practically means

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Executive summary

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Okiya Omtatah Okoiti, a public interest litigant, petitioned the Employment and Labour Relations Court at Nairobi challenging appointments to the National Standards Council (KEBS Board) and the appointment of the KEBS Managing Director. He alleged that the Cabinet Secretary for Industry, Trade and Co-operatives handpicked Bernard M. Ngore as Chairperson and eight independent members of the NSC without transparent, competitive, merit-based recruitment, and that Bernard Njiinu Njiraini was appointed CEO despite ranking sixth in interviews, contrary to Government policy requiring appointment from the top three candidates. The Respondents contested the Court's jurisdiction, the Petitioner's locus standi, and the legality of the appointments, arguing the Standards Act made specific provision for the appointments. The Court dismissed the 5th Respondent's application to strike out names of other respondents as an abuse of process intended to delay judgment. It held it had jurisdiction, distinguishing Court of Appeal authority on constitutional commissions, and found the Petitioner had locus standi under Articles 22 and 258. The Court found the handpicked appointments of the Chairperson and independent members violated Articles 10 and 232 of the Constitution, noting the Respondents' own admission that the process was not competitive. It further found the appointment of the 14th Respondent as CEO violated the Constitution and the 2004 Government circular because he was not among the top three candidates. The Court declared the appointments null and void ab initio, quashed the gazette notifications, and ordered new appointments in compliance with the Constitution. No costs were ordered given the public interest nature of the petition.

Key legal issues

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01

Jurisdiction of the ELRC over appointments to KEBS board and CEO

Holding

The Court has jurisdiction over appointments of council members and CEO of KEBS, being employment-related public office disputes within Article 162(2)(a)

Reasoning

The Respondents relied on Court of Appeal authority that petitions concerning constitutional commissions belong in the High Court. The Court distinguished that authority, noting it concerned members of constitutional commissions, not board members of state corporations. The Court noted it has heard and determined numerous cases involving appointment of chairpersons and board members of state corporations which were upheld on appeal.

p. 23
02

Locus standi of the Petitioner

Holding

The Petitioner, acting in the public interest under Articles 22 and 258, has locus standi

Reasoning

Articles 22 and 258 permit any person acting in the public interest to institute proceedings to enforce the Bill of Rights or defend the Constitution. Relying on Kiluwa and Afubwa, the Court held the Constitution did away with locus requirements where a person is defending the Constitution. The Petitioner pleaded he brought the petition in the public interest.

p. 24
03

Appointment of 5th to 13th Respondents to the NSC

Holding

The handpicked appointments violated Articles 10 and 232 and were null and void

Reasoning

The Respondents did not deny the appointees were handpicked; the Principal Secretary's affidavit admitted the appointments were not competitive. Articles 10 and 232 bind all state organs and state corporations and require transparency, fair competition and merit. Appointments made without a competitive, inclusive and merit-based process are therefore unconstitutional and void.

p. 26
04

Appointment of the 14th Respondent as KEBS CEO

Holding

Appointment of a candidate outside the top three violated the Constitution and Government policy and was null and void

Reasoning

Section 5(1) of the Standards Act requires appointment of the Director on the advice of the Council. The Government circular of 23rd November 2004 requires the three best candidates be submitted. The Council's letter of 28th August 2019 recommended the top three, with the 14th Respondent only among two additional names. The preference for him over the best three was not satisfactorily explained and violated Articles 10 and 232.

p. 28
05

Application by 5th Respondent to strike out names of 7th, 8th and 10th Respondents whose terms lapsed

Holding

Application dismissed as an abuse of process

Reasoning

Despite the lapsed terms, the Court should still determine whether their appointments complied with the Constitution. The history of serial applications by the 5th Respondent indicated an intention to delay judgment. The 5th Respondent also lacked standing to seek striking out of other respondents' names.

p. 22

Legal principles established

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  • Appointments to state corporations that do not comply with Articles 10 and 232 of the Constitution are unconstitutional
  • The Constitution dispensed with strict locus standi requirements for persons defending the Constitution
  • An appointing authority is bound to pick from the best candidates or explain why the best candidate was not picked

Court orders

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  1. 1.Declaration that the 1st Respondent's decision to handpick and appoint the Chairperson and independent members of the NSC without a transparent, competitive, inclusive and merit-based recruitment process was irregular, unlawful, unconstitutional and null and void ab initio
  2. 2.Quashing of the 1st Respondent's appointments and gazette notifications of Bernard M. Ngore as Chairperson and Mary Wanja Matu, Helen Kabeti Nangithia, Fouzia A. Abdirahman, Patrick M. Musila, Edward Njoroge, Eric Mungai, Gilbert Lang'at and Rogers Ochako Abisai as independent members of the National Standards Council
  3. 3.Declaration that the appointment of Bernard Njiinu Njiraini as Chief Executive Officer of the Kenya Bureau of Standards was invalid, null and void ab initio
  4. 4.Quashing of the 1st Respondent's appointment of Bernard Njiinu Njiraini as Chief Executive Officer of the Kenya Bureau of Standards
  5. 5.Order compelling the 1st to 4th Respondents to ensure new Chairperson and new independent members of the NSC are appointed strictly in compliance with the Constitution and national legislation
  6. 6.No orders for costs
  7. 7.Any prayers not granted stand dismissed
Jurisdiction invoked
Articles 22, 23, 162(2)(a) and 165(5)(b) of the Constitution of Kenya, 2010 as read with Section 12 of the Employment Act

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, "Okoiti v Cabinet Secretary, Industry, Trade and Co-operatives & 13 others; Kenya Bureau of Standards (Interested Party) (Petition 19 of 2020) [2022] KEELRC 1416 (KLR)", Case Analysis (2022). Petition No. E094 of 2020 (as context indicates an ELRC petition; judgment does not print its own number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1416/eng@2022-05-25

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