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ELRCAllowedNot stated in the judgment (Petition dated 9th February 2023)· [2023] KEELRC 1291 (KLR)

Sang v Governor Kericho County & 2 others (Petition 001 of 2023) [2023] KEELRC 1291 (KLR)

Employment and Labour Relations Court
23 May 2023
5,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling on the Petitioner's Notice of motion dated 9th February 2023 in a petition filed before the Employment and Labour Relations Court at Kericho. The Petitioner, Collins Kipngetich Sang, an advocate interested in applying for the position of County Attorney of Kericho County, sought interim injunctive orders restraining the Respondents from proceeding with the vetting, appointment or issuance of a letter of appointment to any candidate for that position. He contended that Alice Chepngetich Bett, nominated by the Governor under Section 5 of the Office of the County Attorney Act, was not competitively recruited, and that the office already had a substantive occupant, Gideon Mutai, whose services had not been terminated. The Respondents opposed, arguing that under Section 5(1) of the County Attorney Act the Governor appoints the County Attorney with county assembly approval, that competitive recruitment under sections 17 and 18 applies only to the County Solicitor and County Legal Counsel, that the Petitioner lacked locus standi, and that the affidavits were defectively commissioned by an inactive advocate. Both parties filed written submissions on the Giella v Cassman Brown test. The court, per Hellen Wasilwa J, found that Section 5 vests appointment in the Governor, but that there was no vacancy since an incumbent remained in office with a contract expiring in 2025 and no explanation for the new nomination. It held the applicant had established a prima facie case with probability of success and granted the interim injunction pending the petition. Costs were reserved to the petition.

Key legal issues

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01

Whether the appointment of a County Attorney under Section 5 of the Office of the County Attorney Act requires competitive recruitment

Holding

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.

Reasoning

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.

p. 10
02

Whether an interlocutory injunction should issue pending the hearing of the petition

Holding

Yes - the applicant established a prima facie case with probability of success, warranting the interim injunction sought.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.Costs in the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 2, 3, 10, 22, 27, 54, 73, 174, 232, 258, 259, 260; Chapter Six
  • Office of the County Attorney ActSections 4, 5, 17, 18, 31
  • Civil Procedure RulesOrder 51 Rule 1
  • County Governments ActSections 2, 66
  • Public Service (Values and Principles) ActSection 10
  • Public Appointments (County Assemblies Approval) ActSection 5(1)
  • Advocates ActSections 24, 30, 31
  • Evidence ActNot specified
  • Oaths and Statutory Declarations ActNot specified

Cases cited (16)

  • Anarita Karimi Njeri vs The Republic
    [1976-1980] KLR 1272
  • Giella v Cassman Brown
    [1973] E.A 358
  • Evans Muswahili Ladtema v Governor, County of Vihiga; County Assembly of Vihiga & others (Interested Parties)
    [2021] eKLR
  • Commission for Human Rights and Justice v Michelle Bibi Fondo & 2 others
    [2021] eKLR
  • Okiya Omtatah Okoiti & 3 Others vs Nairobi City County & 5 others
    [2014] eKLR
  • Benson Riitho Mureithi v J.W Wakhungu and 2 Others
    Pet No. 19 of 2014
  • Moses C. Muhia Njoroge & 2 others v Jane W. Lesaloi and 5 others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya and 2 others
  • Muslim for Human Rights (Milimani) & 2 Others v Attorney General & 2 Others
    [2011] eKLR
  • East African Portland Cement Company Limited v Attorney General and Another
    NRB IC No. 9 of 2012 [2013] eKLR
  • Kenya Anti-Corruption Commission v Deepak Chamanlal Kamani and 4 Others
    [2014] eKLR
  • Oliver Mukhebi & 28 others v County Public Service Board of Bungoma & another
    [2022] eKLR
  • Prof Syed Hug v Islamic University of Uganda
    C.A. No. 47 of 1995
  • Omusotsi v the Returning Officer and Another
    Election Petition No. 21 of 2017
  • Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 Others
    [2013] eKLR
  • Pius Njogu Kathuri v Joseph Kiragu Muthura & 3 others
    [2018] eKLR
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

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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, "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.