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ELRCStruck OutPetition dated 7 February 2023 (number not stated in judgment)· [2023] KEELRC 1008 (KLR)

Ouru v County Assembly of Nyamira & 3 others (Petition E005 of 2023) [2023] KEELRC 1008 (KLR)

Employment and Labour Relations Court
3 May 2023
RSRadido Stephen
1,231 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 struck out a challenge to Nyamira's County Secretary appointment because the objector skipped the required County Assembly and Public Service Commission steps.

What this practically means

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Executive summary

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The Petitioner sued the County Assembly of Nyamira, Dr Jack Magara (the 2nd Respondent), the Governor of Nyamira and the County Public Service Board, challenging Dr Magara's appointment as County Secretary on the ground that he was unqualified. He sought a declaration of disqualification, certiorari to quash the appointment, prohibition against County Assembly approval, and mandamus compelling a fresh recruitment under section 44 of the County Governments Act. The Petitioner alleged the 2nd Respondent oversaw the poor construction of Nyamusi Level 4 Hospital, undeservedly earned allowances after promotion, and irregularly superintended the recruitment of 34 health workers. The Respondents replied that construction oversight lay with a Contract Implementation Committee, the allowances were codified in a collective bargaining agreement with the Kenya Medical Practitioners, Pharmacists and Dentists Union, recruitment was a Board function, and that statutory avenues existed for raising suitability objections. The Respondents also objected to jurisdiction, relying on section 87(2) of the Public Service Commission Act as read with section 77 of the County Governments Act. The Court held that objections to a nominee's qualifications should first go to the County Assembly during approval, with an appeal lying to the Public Service Commission; since the Petitioner had snubbed those avenues, the Petition was premature and the Court's jurisdiction was deferred. On the merits, in the alternative, the Court found no evidence that the 2nd Respondent oversaw the hospital construction or the irregular recruitment, and held the allowances lawful under the CBA. The Court declined jurisdiction, struck out the Petition, and awarded costs to the Respondents.

Key legal issues

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01

Whether the Court had first-instance jurisdiction over the challenge to the County Secretary's appointment

Holding

The Court declined jurisdiction, holding the Petition premature because the statutory approval and appeal avenues had not been exhausted

Reasoning

The County Secretary's appointment is governed by section 44 of the County Governments Act and the Public Appointments (County Assemblies Approval) Act, which place objections before the County Assembly, with an appeal thereafter to the Public Service Commission under section 77(2)(a), (d) and (e) of the County Governments Act read with section 87(2) of the Public Service Commission Act. The Petitioner snubbed the County Assembly opportunity and went straight to court, which would usurp the function of the statutorily mandated organs.

p. 3
02

Whether the 2nd Respondent was unqualified due to alleged poor supervision of the Nyamusi Level 4 Hospital construction

Holding

On the assumption jurisdiction existed, the allegation failed for lack of evidence

Reasoning

The Petitioner produced no evidence that the 2nd Respondent was in charge of the construction or that the works were poorly done. The photographic evidence was unaccompanied by any expert report and could not establish culpability; the Respondents explained that a Contract Implementation Committee oversaw the works and had faults redone.

p. 3
03

Whether continued payment of allowances to the 2nd Respondent after promotion was unlawful

Holding

The allowances were provided for in a collective bargaining agreement and were lawful

Reasoning

The Respondents justified the allowances under a collective bargaining agreement between the Kenya Medical Practitioners, Pharmacists & Dentists Union and the County Government of Nyamira. The agreement provides for the allowances, and the Petitioner did not suggest the 2nd Respondent was not a Union member, so he was eligible to receive them unless varied contractually or by law.

p. 3
04

Whether the recruitment of 34 health workers was irregular

Holding

No evidence was placed before the Court establishing irregularity

Reasoning

The Petitioner adduced no evidence that the Respondents were involved in irregular or unlawful recruitment of the 34 health workers; the Respondents explained that recruitment of health workers is a function of the Board.

p. 4

Legal principles established

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  • Where a statute provides alternative fora for raising objections to qualifications and suitability of a county public service nominee, the High Court's (ELC/ELRC) jurisdiction is deferred and a petition brought without exhausting those avenues is premature and may be struck out
  • Objections to qualification and suitability of a County Secretary nominee should be raised before the County Assembly at the approval stage, and thereafter on appeal to the Public Service Commission under section 77(2)(a), (d) and (e) of the County Governments Act as read with section 87(2) of the Public Service Commission Act
  • Photographic evidence produced without an expert report is insufficient to establish culpability

Court orders

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  1. 1.The Court declines jurisdiction and strikes out the Petition
  2. 2.Costs are awarded to the Respondents
Jurisdiction invoked
Not expressly stated; petition alleges contravention of section 44 and section 59 of the County Governments Act in respect of the County Secretary appointment

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, "Ouru v County Assembly of Nyamira & 3 others (Petition E005 of 2023) [2023] KEELRC 1008 (KLR)", Case Analysis (2023). Petition dated 7 February 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1008/eng@2023-05-03

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