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ELRCStruck OutPetition (Kisumu), not stated in judgment· [2022] KEELRC 1506 (KLR)

Ouko v Kisumu County Public Service Board & 2 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E007 of 2020) [2022] KEELRC 1506 (KLR)

Employment and Labour Relations Court
15 June 2022
RSRadido Stephen
2,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kisumu struck out a petition challenging Kisumu County's City Manager recruitment because the petitioner skipped the mandatory appeal to the Public Service Commission.

What this practically means

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Executive summary

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The Petitioner, Benard Omondi Ouko, challenged the recruitment process for the position of City Manager of the City of Kisumu initiated by the County Public Service Board, Kisumu through a newspaper advert on 25 September 2020. He contended that the Board unlawfully shortened the application period from a minimum of 21 days to 13 days, added qualifications not contemplated by sections 29 and 30 of the Urban Areas and Cities Act, and had irregularly appointed Michael Abala Wanga as acting City Manager despite his status as a criminal convict whose conviction had not been overturned. He sought declarations that the advert was unconstitutional and orders of certiorari to quash both the acting appointment and the recruitment process. Before judgment, the Court directed the parties to address whether it had first instance jurisdiction given Article 234(2)(i) of the Constitution, section 77 of the County Governments Act and sections 85, 86 and 87 of the Public Service Commission Act. The Petitioner and the Ethics and Anti-Corruption Commission urged the Court to assume jurisdiction, arguing the issues raised constitutional questions and that the Board had made no appealable decision, while the acting City Manager contended the Petitioner had failed to exhaust the statutory appellate avenues. The Court held that the Board's publication of the vacancy notice and the acting appointment were decisions appealable to the Public Service Commission, whose appellate jurisdiction under Article 234(2)(i) is quasi-judicial, constitutionally bound, and capable of hearing constitutional rights allegations. Finding no evidence that the Petitioner had exhausted that appellate process, the Court concluded it lacked first instance jurisdiction and struck out the Petition with costs.

Key legal issues

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01

Exhaustion of statutory appellate remedies in county public service disputes

Holding

The Court lacks first instance jurisdiction where the Petitioner has not appealed to the Public Service Commission under Article 234(2)(i), section 77 of the County Governments Act and sections 85, 86 and 87(2) of the Public Service Commission Act.

Reasoning

The Board's publication of the vacancy notice with qualifications, and its appointment of an acting City Manager, were decisions capable of being appealed to the Public Service Commission. Section 87(2) of the Public Service Commission Act forbids instituting court proceedings on matters within the Commission's jurisdiction until all appellate avenues are exhausted, and no exceptional circumstances excused the bypass here.

p. 5
02

Prematurity of the Petition vis-à-vis the complaint letter of 12 November 2020

Holding

The objection that the Petition was premature failed because the Board had already fixed interviews for 20 November 2020, leaving no meaningful time to act on the complaint.

Reasoning

The Court accepted that awaiting a response from the Board would have been futile since the interviews were already scheduled, so this limb of the Respondents' objection did not sustain their jurisdictional challenge; the fatal defect remained non-exhaustion.

p. 4
03

Whether constitutional violation claims fall outside the Public Service Commission's competence

Holding

The Commission's quasi-judicial appellate jurisdiction is exercised under constitutional obligations and can address constitutional rights allegations; such claims do not automatically vest exclusive jurisdiction in the High Court.

Reasoning

The appellate jurisdiction under Article 234(2)(i) is quasi-judicial and subject to the Court's supervisory jurisdiction under the Fair Administrative Actions Act. While exercising that function the Commission is bound by Articles 2(1), 3(1), 10, 20 and 259 of the Constitution, so the argument that it cannot handle constitutional claims cannot hold.

p. 5

Legal principles established

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  • Decisions of a County Public Service Board on recruitment, selection, appointment and qualifications attached to an office are appealable to the Public Service Commission under Article 234(2)(i) and section 77 of the County Governments Act, and a party must exhaust that appellate route before approaching the Court.
  • The Public Service Commission, exercising its appellate function under Article 234(2)(i), is bound by the Constitution and can entertain allegations of constitutional violations; courts are not the exclusive forum for such claims.

Court orders

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  1. 1.The Petition is struck out with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 184
  • Constitution of Kenya, 2010Article 234(2)(i)
  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 20, 162, 259
  • Urban Areas and Cities ActSections 29 and 30
  • County Governments ActSections 64(5) and 77(2)
  • Public Service Commission Act, 2017Sections 85, 86 and 87(2)
  • Employment and Labour Relations ActSection 12(1)
  • Fair Administrative Actions Actnot specified

Cases cited (7)

  • R V Firearms Licensing Board & Ar ex parte Boniface Mwaura
    (2019) eKLR
  • United States International University (USIU) v Attorney General
    (2012) eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Ors
    (2013) eKLR
  • Sollo Nzuki v Salaries and Remuneration Commission & 2 Ors
    (2019) eKLR
  • A.O.O. & 6 Ors v Attorney General & Ar
    (2017) eKLR
  • Secretary, County Public Service Board & Anor Vs Hulbhai Gedi Abdille
    (2017) eKLR
  • Republic v National Environment Management Authority
    (supra)
Jurisdiction invoked
Article 234(2)(i) of the Constitution as read with section 77 of the County Governments Act and sections 85, 86 and 87 of the Public Service Commission Act (exhaustion of alternative appellate forum)

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, "Ouko v Kisumu County Public Service Board & 2 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E007 of 2020) [2022] KEELRC 1506 (KLR)", Case Analysis (2022). Petition (Kisumu), not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1506/eng@2022-06-15

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