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ELRCOtherPetition (Kisii) re appointment of County Attorney, Kisii· [2023] KEELRC 2331 (KLR)

Omao & another v Arati & 6 others; Nyandieka (Interested Party) (Petition E014 of 2023) [2023] KEELRC 2331 (KLR)

Employment and Labour Relations Court
4 October 2023
SRStephen Radido
883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A later Notice of Change of Advocates wiped out disputes over who could represent Kisii County officials, mooting both applications without deciding the main petition.

What this practically means

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Executive summary

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This is an interlocutory ruling in a constitutional petition challenging the appointment of Alfred Ongiri Nyandieka (the Interested Party) as County Attorney, Kisii, gazetted on November 30, 2022. The Petitioners alleged the appointment violated Articles 10, 159(2)(e), 232(1)(g) & (2)(a) of the Constitution and various public-service statutes. Two Motions arose over representation. First, the Petitioners sought to disqualify the Interested Party from representing the 1st to 4th Respondents and to strike out pleadings drawn by him, arguing he was a subject of and likely witness in the proceedings and barred by Rule 8 of the Advocates (Practice) Rules, 1966. Second, the County Attorney's office sought to strike out a Notice of Change of Advocates filed by Ochoki & Co Advocates for the County Public Service Board (4th Respondent), which itself deponed it had not instructed that firm. Before the Motions could be determined, Odhiambo Oronga & Co Advocates filed a Notice of Change of Advocates on June 22, 2023 for the 1st to 4th Respondents. The Court held this notice superseded all previous notices of appointment, making the County Attorney's Motion superfluous and overtaken by events, and rendering the Petitioners' disqualification Motion otiose. The Court awarded costs of both Motions in the cause and indicated it would give directions for the expeditious and proportionate disposal of the Petition. The substantive petition remains pending; no determination was made on the merits of the constitutional challenge.

Key legal issues

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01

Whether the County Attorney's Motion to strike out Ochoki & Co Advocates' Notice of Change of Advocates for the 4th Respondent remained live

Holding

The Motion was superfluous and overtaken by events because a subsequent Notice of Change of Advocates (Odhiambo Oronga & Co, filed June 22, 2023) superseded the earlier notice

Reasoning

The Court observed that the advocate now representing the 1st to 4th Respondents is the firm named in the June 22, 2023 Notice of Change of Advocates. Since that notice supersedes any previous notices of appointment, the dispute over Ochoki & Co's appointment had become academic, rendering the County Attorney's Motion superfluous.

p. 3
02

Whether the Petitioners' Motion to disqualify the Interested Party and strike out pleadings drawn by him still required adjudication

Holding

The Motion was rendered otiose by the Notice of Change of Advocates; no order was made on it

Reasoning

Having found that the current representation of the 1st to 4th Respondents is by Odhiambo Oronga & Co Advocates, the Court held that the Petitioners' amended Motion dated May 23, 2023, seeking disqualification of the Interested Party and striking out of his pleadings, had been rendered otiose and required no determination on the merits.

p. 3

Legal principles established

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  • A Notice of Change of Advocates supersedes all previous notices of appointment, mooting applications directed at earlier representation

Court orders

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  1. 1.Costs of the two Motions awarded in the cause
  2. 2.Court to give directions on the expeditious and proportionate disposal of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 159(2)(e), 232(1)(g) & (2)(a)
  • Public Service (Values and Principles) ActSection 17(2)(i)
  • Public Service Commission ActSection 37
  • Public Appointments (County Assemblies Approval) ActSections 4, 5 and 6(2), (3) and (4)
  • County Governments Act
  • Office of the County Attorney Act
  • Advocates (Practice) Rules, 1966Rule 8
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 10, 159(2)(e), 232(1)(g) & (2)(a) of the Constitution invoked in the Petition)

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, "Omao & another v Arati & 6 others; Nyandieka (Interested Party) (Petition E014 of 2023) [2023] KEELRC 2331 (KLR)", Case Analysis (2023). Petition (Kisii) re appointment of County Attorney, Kisii. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2331/eng@2023-10-04

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