Hussein & another v Governor, County Government of Mandera & 2 others (Petition E143 of 2023) [2023] KEELRC 1882 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the petition
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
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.
Prima facie case and qualification of the Interested Party
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
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.
Balance of convenience and public interest on interim relief
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
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.
Chapter 6 leadership and integrity considerations
The integrity issues raised are serious but are best determined at the full hearing of the petition with full evidence
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.
Legal principles established
#- 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
#- 1.The Petitioners' application dated 20.07.2023 is dismissed with costs in the cause
- 2.Parties to take directions for expeditious hearing and determination of the main petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.