Okoiti v Board, Export Processing Zones Authority & 3 others; Otieno (Interested Party) (Petition E133 of 2021) [2023] KEELRC 492 (KLR)
The bottom line
#Kenya's Employment Court refused to revisit its ruling that Ezekiel Otieno is the lawful CEO of the EPZ Authority, rejecting a late audit report and demanding full compliance with the judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the review application satisfied Rule 33
It did not; the audit report was in existence before the hearing and could have been produced with reasonable diligence
The audit report dated August 13, 2021 existed before the Petition was heard and before judgment. The 1st Respondent neither produced it during the hearing nor mentioned it in its Replying Affidavit, instead attempting to introduce it through an irregularly filed skeleton-file application 7 days before judgment. Evidence obtainable with reasonable diligence does not satisfy the review threshold under Rule 33.
Validity of the Interested Party's recruitment as CEO
The recruitment was lawful; the Board was quorate, unconflicted, and the Interested Party scored highest
The Court reaffirmed its findings that the Board recommendation was made with 12 of 13 members present, no conflict of interest was disclosed, and the Interested Party scored 85.5%, far ahead of the other candidates. Meritocracy under Article 232 and legitimate expectation under Articles 41 and 232 entitle him to serve as CEO. The Court cannot undo its judgment or the appointment.
Lawfulness of the Cabinet Secretary commissioning an audit of a State Corporation
There is no law authorizing Cabinet Secretaries to audit State Corporations; the report would not have altered the Court's view
The Judgment had already found that audits should be carried out by the Inspector-General of State Corporations under Section 18 of the State Corporations Act, on request of the State Corporations Advisory Committee or the Controller and Auditor-General. The audit report, even if admitted, would not change the Court's view on the 2nd Respondent's unlawful role in commissioning it.
Irregular filing through a skeleton file
The July 21, 2022 application filed through a skeleton file by another law firm was irregular and expunged
Adrian Kamotho Njenga & Company Advocates remained on record for the 1st Respondent, yet another law firm filed the application in a skeleton file because the main file was with the Judge. The Court found this irregular and set aside the application together with any consequential orders.
Legal principles established
#- A party seeking review must satisfy the requirements of Rule 33 of the E&LRC (Procedure) Rules, 2016; evidence that existed and could with reasonable diligence have been produced before judgment cannot ground review
- Meritocracy in public service under Article 232 of the Constitution entitles a competitively recruited candidate who emerged top to the appointment
Court orders
#- 1.The Application dated August 1, 2022, filed by the 1st Respondent is declined.
- 2.The Application filed by the 1st Respondent irregularly, through a skeleton file, dated July 21, 2022, is expunged from the record and any consequential orders issued therein, set aside.
- 3.Parties shall comply in full, with the Judgment on record.
- 4.No order on the costs in both applications.
- Jurisdiction invoked
- Review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Board, Export Processing Zones Authority & 3 others; Otieno (Interested Party) (Petition E133 of 2021) [2023] KEELRC 492 (KLR)", Case Analysis (2023). Not stated in the excerpt (Petition; 1st Respondent's Application dated August 1, 2022 for review and stay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/492/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.