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ELRCOtherJudicial Review application (Notice of Motion dated May 19, 2022)· [2023] KEELRC 1943 (KLR)

Republic v Kenya Ports Authority Board of Directors & 2 others; Public Service Commission (Interested Party); Commission for Human Rights Justice (Exparte Applicant) (Judicial Review Application E001 of 2022) [2023] KEELRC 1943 (KLR)

Employment and Labour Relations Court
13 July 2023
3,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that state corporation boards like KPA cannot approve staff HR rules without Public Service Commission approval, and ordered an audit instead of cancelling appointments.

What this practically means

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Executive summary

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The ex parte applicant, an NGO, sought judicial review orders of certiorari and prohibition to quash and prohibit implementation of a resolution of the Kenya Ports Authority Board dated April 20, 2022, which approved revised Human Resource Instruments effecting new staff appointments and deployments following the merger of Kenya Ferry Services Limited functions into KPA. The applicant contended that approval by the Cabinet Secretary rather than the Public Service Commission was irregular and ultra vires, that consultations and public participation were lacking, and that appointments (including one of an unregistered engineer) contravened the rule of law. The 1st respondent opposed, asserting Board mandate under Section 58 of the Kenya Ports Authority Act and Article 232, and that the instruments were already implemented. The 2nd and 3rd respondents denied involvement. The interested party, the Public Service Commission, maintained that establishment of offices and review of organisation structures of public bodies required its approval under Sections 26 and 58(1) of the Public Service Commission Act and Article 234(2) of the Constitution. The court held that the PSC is the only body with constitutional authority to approve human resource instruments of state corporations, and that the Board's resolution absent PSC approval was ultra vires. Rather than issuing certiorari and prohibition outright - the instruments having been implemented and officers appointed - the court invoked Article 234(2)(d)-(g) and directed a PSC audit of the resolution within six months at KPA's cost, with a report to court. The applicant, being an NGO, was ordered to bear its own costs. Mention was set for 30 November 2023 for a progress report.

Key legal issues

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01

Whether the KPA Board could lawfully approve and implement revised Human Resource Instruments without PSC approval

Holding

No; approval of human resource instruments for state corporations is constitutionally vested in the PSC under Article 234, and the Board's approval absent PSC approval was ultra vires

Reasoning

The court held that although KPA is a state corporation managed by a Board under the Kenya Ports Authority Act, as a public entity it is bound by the Constitution. Article 234, effected through the Public Service Commission Act, vests authority over establishment of offices, appointments and conditions of service in the PSC. The court relied on COFEK v NSSF Board to confirm Article 234 prevails over State Corporations Act provisions. Any approval outside the constitutional threshold is ultra vires.

p. 6
02

Whether the judicial review orders of certiorari and prohibition should issue

Holding

Certiorari and prohibition in the strict sense were not granted; instead the court, applying Article 234(2)(d)-(g), directed a PSC audit of the resolution within six months

Reasoning

The court observed that judicial review remedies are time-bound and that officers had already been appointed or deployed under the belief the Board had mandate. To forestall service disruptions, the court invoked the PSC's powers to investigate, monitor and evaluate public service personnel practices and make recommendations, directing the PSC to audit the resolution and report to court, at the 1st respondent's cost.

p. 6

Legal principles established

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  • The Public Service Commission is the only body with constitutional authority to approve human resource instruments of state corporations
  • Approval of human resource instruments outside the PSC's constitutional mandate is ultra vires

Court orders

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  1. 1.The resolution of the 1st respondent of April 20, 2022 on implementation of the Human Resource Instruments shall be subject to an audit by the Public Service Commission, which shall make recommendations ensuring efficiency and effectiveness for approval as appropriate
  2. 2.The audit process shall be undertaken within six (6) months at the cost of the 1st respondent
  3. 3.The Public Service Commission shall report to the court for adoption as appropriate
  4. 4.The ex parte applicant, being a non-governmental organisation, to bear its own costs
  5. 5.Mention on 30 November 2023 for progress report by the Public Service Commission and further directions

Authorities

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Legislation

  • Kenya Ports Authority ActSections 3, 58
  • Constitution of Kenya, 2010Articles 10, 132(3)(b), 232, 233, 234, 234(2), 234(2)(a)(i), 234(2)(c), 234(2)(d)-(g)
  • Public Finance Management ActSection 86
  • Public Finance Management (National Government) Regulations, 2015Regulation 216
  • State Corporations ActSections 4, 5(3), 27
  • Public Service Commission ActSections 26, 27, 58(1)
  • Law Reform Actjudicial review provisions
  • Civil Procedure ActOrder 53
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(3)
  • Engineers Actregistration of engineers

Cases cited (1)

  • Consumers Federation of Kenya (COFEK) suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng v National Social Security Fund Board of Trustees & another; Cabinet Secretary, Ministry of Labour and Social Protection (Interested Party)
    [2022] eKLR
Jurisdiction invoked
Law Reform Act read with Civil Procedure Act and Order 53; ELRC Procedure Rules 2016 Rule 7(3)

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, "Republic v Kenya Ports Authority Board of Directors & 2 others; Public Service Commission (Interested Party); Commission for Human Rights Justice (Exparte Applicant) (Judicial Review Application E001 of 2022) [2023] KEELRC 1943 (KLR)", Case Analysis (2023). Judicial Review application (Notice of Motion dated May 19, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1943/eng@2023-07-13

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