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ELRCPartially AllowedPetition dated 14th November, 2022· [2023] KEELRC 1782 (KLR)

Kassim v Governor, County Government of Garissa; County Service Public Board (Interested Party) (Constitutional Petition E002 of 2022) [2023] KEELRC 1782 (KLR)

Employment and Labour Relations Court of Kenya
14 July 2023
SRStella Rutto
4,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a county Governor cannot set up a taskforce to handle staff matters because that job belongs to the County Public Service Board.

What this practically means

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Executive summary

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The Petitioner, a resident and registered voter in Garissa County, challenged Kenya Gazette Notice No. 13821 dated 8th November 2022 by which the Governor of Garissa County appointed a seven-member Special Taskforce on County Staff Audit to hear concerns of staff affected by a recent Human Resource Audit and to recommend actions. She sought a declaration that the appointment was unconstitutional and null and void ab initio, contending that human resource functions in the county rest exclusively with the County Public Service Board, that the underlying audit report was never released publicly, and that the Taskforce was a witch-hunt against staff appointed between 2017 and 2022, contrary to Articles 27, 47 and 232 of the Constitution. The Respondent defended the Taskforce as an exercise of executive authority under Sections 30 and 31 of the County Governments Act aimed at curbing a ballooning wage bill; the Interested Party (the Board) supported the Petition, asserting the Governor usurped its statutory mandate without consultation. The Respondent and Interested Party filed no submissions. The Court framed a single issue: whether the Governor acted within the Constitution and the law in establishing the Taskforce. Applying Article 235 of the Constitution and Sections 57 and 59 of the County Governments Act, and following the Court of Appeal in Kisumu County Public Service Board v Samuel Okuro, the Court held that human resource management in counties is the preserve of the County Public Service Board. The Taskforce's terms of reference encroached on those functions and the Governor lacked legal mandate. The Petition succeeded; a declaration of lack of mandate was issued and each party was ordered to bear its own costs. The Court, however, noted grave irregularities in the county's human resource management disclosed by the audit report and questioned the Board's own performance, though declining to determine that issue as it was not before it.

Key legal issues

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01

Whether the Respondent acted within the Constitution and the law in establishing the Taskforce on county staff audit

Holding

The Respondent lacked the legal mandate; the appointment of the Taskforce was unconstitutional in the sense that it had no backing in law, as its terms of reference encroached on the functions of the County Public Service Board under Article 235 of the Constitution and Section 59 of the County Governments Act.

Reasoning

Article 235 vests in county governments the responsibility for establishing offices, appointments and disciplinary control, exercised through County Public Service Boards established under Section 57 and empowered by Section 59 of the County Governments Act. The Taskforce's terms of reference - hearing concerns of staff affected by the HR audit and recommending actions - overlapped with these statutory functions. The Taskforce's communication inviting affected officers showed it was performing an investigatory/disciplinary role. The Governor did not consult the Board. Accordingly the appointment had no legal basis.

p. 9
02

Allocation of human resource management functions in county governments

Holding

Performance of functions related to human resource management in county governments is within the purview of the County Public Service Boards.

Reasoning

Relying on the Court of Appeal's decision in Kisumu County Public Service Board v Samuel Okuro, the Court held that the framers of the Constitution intended County Public Service Boards to be corporate bodies, analogous to the Public Service Commission nationally, responsible for regulating employment in the county public service to ensure stability of human resource management despite changes in the county executive.

p. 8

Legal principles established

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  • The only body with the mandate to undertake any aspect of the human resource functions of officers in the county public service is the County Public Service Board; a Governor lacks legal mandate to establish a taskforce whose terms of reference overlap with the Board's statutory functions.

Court orders

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  1. 1.A declaration that the Respondent did not have the legal mandate to establish the Taskforce on County Staff Audit through Kenya Gazette Notice No. 13821 dated 8th November, 2022
  2. 2.Each party to bear its own costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 235
  • Constitution of KenyaArticle 232(1) and (2)
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 47(1) and (2)
  • Constitution of KenyaArticles 10, 79, 80
  • Constitution of KenyaArticles 159(2)(d), 48
  • County Governments ActSections 5, 30, 31(d), 57, 59, 75
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Human Resource Policies and Procedures Manual2016
  • Kenya Gazette Notice No. 13821dated 8th November, 2022

Cases cited (2)

  • Okoiti v Parliamentary Service Commission & 2 Others; Speaker of the National Assembly & another (Interested Parties)
    [2023] KEELRC 252 (KLR)
  • Kisumu County Public Service Board & another v Samuel Okuro & 7 others
    [2018] eKLR
Jurisdiction invoked
Jurisdiction premised on the subject matter being disciplinary action and/or termination, an element of employment (Articles 235 and 232 of the Constitution; County Governments Act); the judgment does not cite a specific jurisdictional provision for 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, "Kassim v Governor, County Government of Garissa; County Service Public Board (Interested Party) (Constitutional Petition E002 of 2022) [2023] KEELRC 1782 (KLR)", Case Analysis (2023). Petition dated 14th November, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1782/eng@2023-07-14

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