Sang v Governor Kericho County & 2 others (Petition 001 of 2023) [2023] KEELRC 1291 (KLR)
The bottom line
#Kericho County was blocked from appointing a new County Attorney because the existing one's contract still runs to 2025, so there was no vacancy to fill.
What this practically means
#Executive summary
#Key legal issues
#Whether the appointment of a County Attorney under Section 5 of the Office of the County Attorney Act requires competitive recruitment
The Act provides that the County Attorney shall be appointed by the Governor with the approval of the county assembly; the court did not finally determine this issue but found the lack of a vacancy gave the applicant a prima facie case.
The court reproduced Section 5 of the County Attorney Act, which vests appointment in the Governor with county assembly approval, and acknowledged the respondents' contention that competitive recruitment applies only to the County Solicitor and County Legal Counsel under sections 17 and 18. However, the court found it decisive that an incumbent, Gideon Mutai, remains in office on a contract expiring in 2025 and that no explanation was offered for nominating a new appointee in the absence of a vacancy.
Whether an interlocutory injunction should issue pending the hearing of the petition
Yes - the applicant established a prima facie case with probability of success, warranting the interim injunction sought.
Applying the Giella v Cassman Brown principles argued by both parties, the court found that the existence of a substantive occupant in the office of County Attorney, with no explanation of what happened to him, gave the applicant a prima facie case with a probability of success. On that footing the court exercised its discretion to extend interim injunctive orders restraining the vetting, appointment or issuance of letters of appointment pending the petition's determination.
Legal principles established
#- Where the office of County Attorney has a substantive incumbent with no vacancy explained, a new nomination without competitive recruitment establishes a prima facie case warranting interim injunctive relief.
Court orders
#- 1.Interim injunction restraining the Respondents from proceeding with the vetting, appointment and issuing of letters of appointment to any candidate for the position of County Attorney, Kericho County, pending the hearing and determination of the petition
- 2.Costs in the petition
- Jurisdiction invoked
- Articles 1, 2, 3, 10, 174, 200, 232 and 259 of the Constitution of Kenya; employment and labour relations jurisdiction of the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Governor Kericho County & 2 others (Petition 001 of 2023) [2023] KEELRC 1291 (KLR)", Case Analysis (2023). Not stated in the judgment (Petition dated 9th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1291/eng@2023-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.