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ELRCDismissedNot stated in judgment· [2023] KEELRC 3038 (KLR)

Nyamwaro v Board of Directors, Kisii Teaching and Referal Hospital & 2 others (Petition E025 of 2023) [2023] KEELRC 3038 (KLR)

Employment and Labour Relations Court
29 November 2023
RSRadido Stephen
533 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court confirmed that a hospital's own founding Act, not the County Public Service Board, controls who recruits its CEO.

What this practically means

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Executive summary

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The Petitioner moved the Employment and Labour Relations Court on 11 September 2023, contending that the Board of Directors of Kisii Teaching & Referral Hospital had usurped the mandate of the County Public Service Board, Kisii by advertising for the position of Chief Executive Officer of the hospital on 10 July 2023. He sought declarations that the Board had no power to appoint the CEO, that the County Public Service Board held the constitutional and statutory mandate to recruit personnel for the hospital (whose employees draw salaries from the County payroll), and that the recruitment was ultra vires, null and void and in breach of Articles 2, 3, 10, 27, 28, 41, 47, 55 and 201 of the Constitution as read with sections 59 and 60 of the County Government Act. The Respondents replied through a replying affidavit and Grounds of Opposition, asserting that the hospital is a semi-autonomous county entity governed by the Kisii Teaching & Referral Hospital Act, 2014, with recruitment regulated by section 11. The Court noted that none of the parties filed submissions. Examining the Act, the Court found that section 11 reserves recruitment of the CEO to the Board, with ultimate appointment power in the Governor, who appointed Dr Douglas Oimeke Mariita on 29 August 2023. Unless the Act were found unconstitutional, the Board could not be held to have usurped the Service Board's mandate. The Petition, found devoid of legal foundation, was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Board of Directors had power to recruit the Chief Executive Officer of Kisii Teaching & Referral Hospital

Holding

The Petition was dismissed; the Board acted lawfully under section 11 of the Kisii Teaching & Referral Hospital Act, 2014

Reasoning

The hospital is a semi-autonomous entity of the County Government established and governed by its own statute, the Kisii Teaching & Referral Hospital Act, 2014. Section 11 of that Act reserves recruitment of the CEO to the Board, with the appointment power vested in the Governor. The Governor duly appointed Dr Douglas Oimeke Mariita on 29 August 2023. Absent a finding that the Act is unconstitutional, the Court could not hold that the Board usurped the County Public Service Board's mandate.

p. 2

Legal principles established

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  • Where a statute specifically reserves recruitment of a hospital CEO to its Board with appointment by the Governor, the County Public Service Board's mandate is displaced unless that statute is declared unconstitutional

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 27, 28, 41, 47, 55, 201
  • County Government Actsections 59, 60
  • Kisii Teaching & Referral Hospital Act, 2014section 11
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging breaches of Articles 2, 3, 10, 27, 28, 41, 47, 55 and 201); county government legislation

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, "Nyamwaro v Board of Directors, Kisii Teaching and Referal Hospital & 2 others (Petition E025 of 2023) [2023] KEELRC 3038 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3038/eng@2023-11-29

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