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ELRCDismissedPetition No E143 of 2023· [2023] KEELRC 1882 (KLR)

Hussein & another v Governor, County Government of Mandera & 2 others (Petition E143 of 2023) [2023] KEELRC 1882 (KLR)

Employment and Labour Relations Court
4 August 2023
3,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court refused to suspend Mandera's County Attorney, ruling the petitioners should have objected during the county assembly's public approval process.

What this practically means

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Executive summary

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The Petitioners filed a Notice of Motion dated 20th July 2023 seeking conservatory orders suspending the appointment of Hussein Adam Somo as County Attorney of Mandera County and restraining him from acting in that office, on the ground that at nomination (14.10.2022) and appointment (07.11.2022) he had not attained the five years' standing as an advocate required by section 5 of the Office of the County Attorney Act, having been admitted to the Roll on 27th March 2018. The 1st and 2nd Respondents raised a preliminary objection on jurisdiction, contending there was no employer-employee relationship and relying on the Court of Appeal decision in Public Service Commission v Cheruiyot. The 3rd Respondent maintained the statutory approval process, including public notices, was followed, and the Interested Party asserted he had five years' standing, producing practising certificates for 2018 to 2022. The Court declined to find a want of jurisdiction, holding that the dispute concerned the validity of a contract of service and that section 12(2) of the ELRC Act, with Articles 22, 23 and 258 of the Constitution, entitled any person to litigate employment-related matters in the public interest. However, on the merits of the interlocutory application, the Court found the Petitioners had failed to object before the County Assembly's Approval Committee despite published public notices, which operated as a bar to temporary relief and vitiated a prima facie case of good faith. The balance of convenience favoured the status quo, and the five-year-standing objection had since been cured by effluxion of time. The application was dismissed with costs in the cause, and directions were ordered for the expeditious hearing of the main petition, in which the Chapter 6 integrity questions remain live.

Key legal issues

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01

Jurisdiction of the ELRC over the petition

Holding

The Court has jurisdiction; the dispute concerns the validity of a contract of service (the appointment as County Attorney) and section 12(2) of the ELRC Act permits any person to lodge a claim where the dispute relates to employment and labour relations, and public interest litigants are protected under Articles 22, 23 and 258

Reasoning

The Court held the preliminary objection untenable. The dispute concerns the appointment of the Interested Party as County Attorney, i.e. the validity of a contract of service. Section 12(2) of the ELRC Act allows claims by or against a broad range of persons, and the Constitution's Articles 22, 23 and 258 confer standing on any person in public interest, provided the subject matter relates to employment or labour relations. The petitioners were therefore entitled to move the Court.

02

Prima facie case and qualification of the Interested Party

Holding

Although the Interested Party was admittedly appointed before attaining the statutory five years' standing as an advocate, the Petitioners failed to establish a prima facie case because they never objected before the County Assembly's Approval Committee despite published public notices

Reasoning

The Court accepted that the Interested Party was admitted to the Roll on 27.03.2018, nominated on 14.10.2022 and appointed/sworn in on 07.11.2022, before the five years required under section 5 of the Office of the County Attorney Act had lapsed. However, public notices inviting memoranda on his suitability were published, and the Petitioners gave no good reason for failing to object before the County Assembly. That failure barred temporary relief and vitiated their claim of good faith.

p. 6
03

Balance of convenience and public interest on interim relief

Holding

The balance of convenience favours the status quo: the Interested Party remains in office pending the petition, particularly since the five-year-standing objection has since been cured by effluxion of time

Reasoning

A conservatory order preserves the status quo so the substratum of the dispute is not rendered nugatory. The Interested Party is already in office and there is no vacancy to preserve; the petitioners were guilty of belated arrival at the altar of justice. Further, the disqualification based on lack of five years' standing has since been overcome with the passage of time, so denial of the interim conservatory orders best serves the balance of convenience.

p. 6
04

Chapter 6 leadership and integrity considerations

Holding

The integrity issues raised are serious but are best determined at the full hearing of the petition with full evidence

Reasoning

The Court acknowledged that the petition engages Chapter 6 leadership and integrity issues and Articles 10 and 232. However, specific statutory provisions on duty bearers must be considered, appropriate remedies identified, and questions of good faith by the actors and the petitioners evaluated. These important integrity considerations require full evidence and can only be answered after the full hearing of the petition.

p. 6

Legal principles established

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  • Any person may move the ELRC in public interest litigation provided the dispute relates to employment or labour relations or related matters under Article 162(2)(a) and section 12(2) of the ELRC Act, read with Articles 22, 23 and 258 of the Constitution
  • Failure to raise an objection before the County Assembly's Approval Committee when notice was published inviting public participation operates as a bar to interim relief and vitiates the claim of good faith public interest litigation
  • A conservatory order preserves the status quo so the substratum of the dispute is not rendered nugatory; where the appointee is already in office and the disqualification has been cured by effluxion of time, the balance of convenience favours denial of interim relief

Court orders

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  1. 1.The Petitioners' application dated 20.07.2023 is dismissed with costs in the cause
  2. 2.Parties to take directions for expeditious hearing and determination of the main petition

Authorities

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Legislation

  • Public Appointments (County Assemblies Approval) Actsections 7(8), 7(10), 8
  • Office of the County Attorney Act, 2020sections 5(1), 5(2)(a)
  • Constitution of Kenya, 2010Articles 10, 22, 23, 41, 73, 162(2)(a), 165(3)(d)(ii), 232, 258
  • Employment and Labour Relations Court Actsection 12, 12(2)

Cases cited (12)

  • Commission for Human Rights and Justice v Michelle Bibi Fondo & 2 others
    [2022] eKLR
  • Public Service Commission & 4 others v Cheruiyot & 20 others
    [2022] KECA 15 (KLR), Civil Appeal 119 & 139 of 2017 (Consolidated)
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & another
    [2013] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Nelson Andayi Havi v Law Society of Kenya & 3 others
    [2018] eKLR
  • Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another
    [2011] eKLR
  • Karisa Chengo & 2 others v Republic
    [2015] eKLR
  • Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority & 2 others
    [2018] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & another
    [2013] eKLR
  • Isaiah Luyara Odando & another v Kenya Revenue Authority & 6 others; Nairobi Branch Law Society of Kenya (Interested Party)
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, read with Articles 22, 23 and 258

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, "Hussein & another v Governor, County Government of Mandera & 2 others (Petition E143 of 2023) [2023] KEELRC 1882 (KLR)", Case Analysis (2023). Petition No E143 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1882/eng@2023-08-04

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