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ELRCDismissedJudicial Review Notice of Motion dated 02.06.2023 (leave granted 30.05.2023)· [2023] KEELRC 2966 (KLR)

Kenya National Union Of Nurses v Cabinet Secretary National Treasury and Economic Planning & another (Judicial Review Application E019 of 2023) [2023] KEELRC 2966 (KLR)

Employment and Labour Relations Court
20 November 2023
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a union's challenge to Lapfund's acting CEO change, ruling only the Cabinet Secretary—not the board—has power to appoint an acting CEO.

What this practically means

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Executive summary

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A trade union, through its General Secretary Seth Ambusini Panyako, sought judicial review orders of certiorari to quash the Cabinet Secretary for the National Treasury's withdrawal of Mr. Galm Guracha Jaldesa's appointment as acting CEO of the Local Authorities Provident Fund (Lapfund), and mandamus compelling the respondents to accord Jaldesa the support accruing to an acting CEO. The CEO, Mr. David Koros, resigned on 25.05.2023 on the eve of the scheme's 13th AGM; the board informally had Jaldesa, a chief manager, perform the CEO's duties for the AGM, then forwarded three names to the Cabinet Secretary, who withdrew the arrangement and by letter of 29.05.2023 appointed Mr. Bernard Weru Mbogoh as acting CEO for six months. The respondents opposed, raising want of jurisdiction, lack of standing (Jaldesa was not a union member and had not authorised the union), and lawful exercise of statutory power. The Court held it had jurisdiction since the dispute concerned termination of an acting appointment, a human resource function under Article 162(2). However, the union failed to establish standing or public interest; the short, private acting arrangement had long ceased, rendering the matter moot. On the merits, the Board had no statutory authority to appoint an acting CEO; section 5(1A)(7) of the Lapfund Act vests that power in the Cabinet Secretary, and section 34 of the Public Service Commission Act, 2017 governed the acting appointment. The respondents acted lawfully. The application was dismissed with each party bearing its own costs, delivered on 20th November 2023 by Byram Ongaya, Principal Judge.

Key legal issues

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01

Jurisdiction of the ELRC over the dispute

Holding

The Court has jurisdiction because the dispute concerns termination of an acting appointment, a human resource function, relating to employment and labour relations under Article 162(2)

Reasoning

Section 12(2) of the Employment and Labour Relations Court Act, 2011 permits any person to file proceedings against an employer or employee. The Court rejected the submission that the absence of an employment relationship between the parties defeated jurisdiction, holding that the guiding test is the subject matter of the dispute, which here was the termination of an acting appointment, an obvious human resource function.

p. 4
02

Standing of the applicant trade union

Holding

The applicant failed to establish standing; Jaldesa was not a union member, had not authorised the union, and the acting appointment was a short, private and discretionary arrangement with no demonstrated public interest

Reasoning

Although Articles 22 and 258 permit public interest litigation, the applicant did not establish the public interest element. The acting appointment was temporary, made to cover the AGM after the CEO's sudden resignation, and had long ceased. The proceedings were therefore moot and initiated frivolously.

p. 4
03

Whether certiorari and mandamus were warranted

Holding

No. The Board had no statutory authority to appoint an acting CEO; its arrangement with Jaldesa was merely an assignment of duties under section 34(4) of the Public Service Commission Act, and the 1st respondent lawfully exercised its power under section 5(1A)(7) of the Lapfund Act by appointing Bernard Weru Mbogoh as acting CEO

Reasoning

Section 5(1A)(7) of Cap 272 vests appointment of the secretary to the Board (who is the CEO) in the Minister/Cabinet Secretary. The Board itself acknowledged in its minutes that Jaldesa was only appointed to hold fort during the AGM. The Cabinet Secretary's withdrawal of the informal appointment and appointment of Mbogoh for up to six months accorded with section 34 of the Public Service Commission Act, 2017 and the circular of 1st February 2023.

p. 5

Legal principles established

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  • The ELRC's jurisdiction is determined by whether the subject matter of the dispute relates to employment and labour relations under Article 162(2) of the Constitution, even where the parties are not in an employment relationship
  • Acting appointments to public office must be made by the lawful appointing authority; a board without statutory authority to appoint a CEO cannot appoint an acting CEO, and an acting appointment under section 34(3) of the Public Service Commission Act runs for not less than 30 days and not more than 6 months
  • A trade union lacking member status, mandate or demonstrated public interest lacks standing to litigate over a private, short-lived acting arrangement

Court orders

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  1. 1.The judicial review application by the notice of motion dated 02.06.2023 is dismissed
  2. 2.Each party to bear own costs of the proceedings

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2); Articles 22(1), 258(2)(c); Articles 40(1), 47, 153(4)(a)
  • Employment and Labour Relations Court Actsection 12(2)
  • Local Authorities Provident Fund Act, Cap 272section 5(1A)(7); section 5(3)
  • State Corporations Actsection 5(3)
  • Public Service Commission Actsections 34, 34(3), 34(4) (2017)

Cases cited (3)

  • Timothy Otuya Afubwa & another v County Government of Trans Nzoia & 3 Others
    [2016] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & another
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 12(2) of the Employment and Labour Relations Court Act, 2011

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, "Kenya National Union Of Nurses v Cabinet Secretary National Treasury and Economic Planning & another (Judicial Review Application E019 of 2023) [2023] KEELRC 2966 (KLR)", Case Analysis (2023). Judicial Review Notice of Motion dated 02.06.2023 (leave granted 30.05.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2966/eng@2023-11-20

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