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ELRCDismissedNot stated in the excerpt (Petition; 1st Respondent's Application dated August 1, 2022 for review and stay)· [2023] KEELRC 492 (KLR)

Okoiti v Board, Export Processing Zones Authority & 3 others; Otieno (Interested Party) (Petition E133 of 2021) [2023] KEELRC 492 (KLR)

Employment and Labour Relations Court
28 February 2023
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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On July 29, 2022 the Court declared invalid the reappointment of Henry Obino as Acting CEO of the EPZ Authority, held that the Cabinet Secretary cannot overrule the Board on the appointment of the CEO, quashed the Cabinet Secretary's letter of August 11, 2021 purporting to reappoint Obino, and directed that the Interested Party, Ezekiel Owuor Otieno, be gazetted as substantive CEO, with no order on costs. The 1st Respondent (EPZ Authority) then applied on August 1, 2022 for review of the judgment and stay of execution under Rule 33 of the E&LRC (Procedure) Rules, 2016, relying on an affidavit of Winnie Sang alleging unsanctioned Board meetings, conflicted Directors, varied recruitment criteria, and irregularities revealed in an audit report dated August 13, 2021. The Interested Party opposed, pointing out that the audit report existed before the Petition was filed and heard, that the 1st Respondent never produced it, and that its Chairman's Replying Affidavit confirmed the Interested Party was recommended for appointment; no appeal had been filed, so stay could not issue in a vacuum. The Court found the requirements of Rule 33 unsatisfied, noting the report could with reasonable diligence have been produced before judgment and was instead sought to be introduced through an irregularly filed skeleton-file application dated July 21, 2022, lodged by a law firm other than the one on record. The Court reaffirmed that the recruitment was lawful, the Board was quorate with no disclosed conflicts, and the Interested Party scored highest at 85.5%. It held that meritocracy under Article 232 and legitimate expectation under Articles 41 and 232 entitled him to the position. The review application was declined, the July 21, 2022 application was expunged and its consequential orders set aside, parties were directed to comply fully with the judgment, and no order on costs was made in either application.

Key legal issues

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01

Whether the review application satisfied Rule 33

Holding

It did not; the audit report was in existence before the hearing and could have been produced with reasonable diligence

Reasoning

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.

p. 3
02

Validity of the Interested Party's recruitment as CEO

Holding

The recruitment was lawful; the Board was quorate, unconflicted, and the Interested Party scored highest

Reasoning

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.

p. 3
03

Lawfulness of the Cabinet Secretary commissioning an audit of a State Corporation

Holding

There is no law authorizing Cabinet Secretaries to audit State Corporations; the report would not have altered the Court's view

Reasoning

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.

p. 3
04

Irregular filing through a skeleton file

Holding

The July 21, 2022 application filed through a skeleton file by another law firm was irregular and expunged

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Application dated August 1, 2022, filed by the 1st Respondent is declined.
  2. 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. 3.Parties shall comply in full, with the Judgment on record.
  4. 4.No order on the costs in both applications.

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • State Corporations ActSection 18
  • Constitution of KenyaArticle 232
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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 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.