Oyaro v Governor Nandi County & 2 others (Petition E029 of 2022) [2023] KEELRC 2047 (KLR)
The bottom line
#Kenya's Employment Court quashed Nandi County's illegally appointed Public Service Board selection panel, voiding every decision it had made.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over disputes concerning appointment of a County Public Service Board selection panel
The court has jurisdiction because the selection panel's role is recruitment of persons who become employees
Relying on authorities including Trusted Society of Human Rights Alliance and Naqvi Syed Qmar v Paramount Bank, the court held that recruitment is a proper element of employment and labour relations. Since the selection panel recruits members of the County Public Service Board, who are employees, disputes over the panel's appointment fall within the court's jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act. No party objected to jurisdiction.
Whether the appointment of the selection panel was irregular
Yes - two nominees did not meet section 58A(2) qualifications and the gender composition violated section 58A(3) and Article 27(8)
The Assembly's own committee found Ms Irene Cheptanui Mutai and Mr Nicholas Kemei were neither private sector members nor ICPAK members, and found the gender requirement contravened. The 3rd Interested Party, a serving magistrate, was not qualified under section 58A(2)(c). Despite these findings the Assembly amended the report and approved all nominees, and the Governor appointed them, violating section 58A and Articles 10 and 27 of the Constitution.
Responsibility of the Speaker and County Attorney
Both violated Articles 2, 3, 10, 27, 73 and 75 by failing to advise on or enforce compliance with section 58A
The Speaker is the final authority on interpretation and application of Assembly procedure and was obliged to enforce the Constitution and statutes when approving the panel; the County Attorney was obliged to advise the Governor correctly. Their failures to ensure a compliant nomination and approval process amounted to violations of constitutional provisions on supremacy, national values, and leadership and integrity.
Legal principles established
#- Section 58A of the County Governments Act is mandatory and a selection panel appointed in violation of it is illegally constituted
- Appointments and actions taken by an illegally constituted selection panel are void ab initio
Court orders
#- 1.Declaration that the 1st, 2nd and 3rd Respondents violated Articles 2, 3, 27, 73 and 75 of the Constitution
- 2.Order of certiorari quashing the resolution of the County Assembly of Nandi dated 15th November 2022 approving the appointment of the Interested Parties as chairperson and members of the Selection Panel
- 3.Order of certiorari quashing the appointment of the Interested Parties as chairperson and members of the Selection Panel for the Nandi County Public Service Board
- 4.Declaration that any appointments made or actions taken by the Selection Panel are void ab initio
- 5.Respondents to bear the Petitioner's costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyaro v Governor Nandi County & 2 others (Petition E029 of 2022) [2023] KEELRC 2047 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2047/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.