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ELRCDismissedPetition No. 3 of 2023· [2023] KEELRC 3209 (KLR)

Omao v County Government of Nyamira & 4 others (Petition 3 of 2023) [2023] KEELRC 3209 (KLR)

Employment and Labour Relations Court
7 December 2023
CBC. N. Baari
2,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a petition challenging Nyamira County's recruitment because the petitioner never precisely showed which constitutional rights were violated or how.

What this practically means

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Executive summary

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The Petitioner, in a petition originally filed at the High Court at Nyamira as Petition No. E002 of 2023 and transferred to the ELRC at Kisumu by Lady Justice W. A. Onkwany for want of jurisdiction, challenged a recruitment advertisement by the County Government of Nyamira published in the Daily Nation on 9th March 2023 and on the County Website on 10th March 2023, inviting applications for 357 positions. He alleged the positions were non-vacant, some existed outside the organizational structure, there was no budgetary provision for them, and the recruitment violated Articles 10, 27, 28, 41, 47 and 55 of the Constitution, the Public Finance Management Act and the County Governments Act. He sought declarations of violation, cancellation of the advertisements, certiorari, permanent injunctions against recruitment and payroll admission, and compensation. The Respondents, through a replying affidavit of George Ila, maintained that due process was followed, positions arose from natural attrition, and the process was sanctioned by accounting officers and the County Executive Committee. The court framed two issues: whether the petition met the constitutional petition threshold and whether the reliefs were deserved. Applying Anarita Karimi Njeru as restated in Sostenah Ogero Taracha and Sella Rose Anyango, the court found the Petitioner had not pleaded or proved violations with precision, that budgets existed for employee compensation, and that nationwide advertisement was competitive. The petition was dismissed with no orders as to costs on 7th December 2023.

Key legal issues

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01

Whether the petition met the threshold for a constitutional petition

Holding

It did not; the Petitioner failed to specify with precision the constitutional provisions violated and the manner of violation, and failed to prove the alleged breaches

Reasoning

The court applied the Anarita Karimi Njeru standard as restated in Sostenah Ogero Taracha and Sella Rose Anyango. The Petitioner made sweeping statements without demonstrating how the advertised recruitment infringed Articles 27, 28, 41, 47 and 55. The evidence showed budgetary provision for compensation of employees, and open nationwide advertisement was competitive and non-discriminatory.

p. 6
02

Whether the Petitioner deserved the reliefs sought

Holding

No; the petition was devoid of merit and dismissed

Reasoning

Having failed to establish a constitutional violation, the Petitioner could not obtain declarations, certiorari, injunctions or compensation. The Respondents had acted under Article 235(1) of the Constitution and Section 59 of the County Governments Act in filling vacancies arising from officers exiting service.

p. 6

Legal principles established

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  • Allegations of constitutional violations must be pleaded with reasonable precision, specifying the provisions infringed and the manner of infringement

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 28, 41, 47, 55, 235(1)
  • Public Finance Management Act2012
  • County Governments ActSection 59, No. 17 of 2012
  • Employment Act2007

Cases cited (7)

  • Biwott v County Public Service Board Baringo County & another
    (Constitutional Petition E010 of 2022) [2022] KEELRC 1360 (KLR)
  • S.J vs. Francesco Di Nello & another
    [2015] eKLR
  • Kenya National Examination Council vs Republic Ex Parte Geofirey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Giella vs. Cassman Brown
    [1973] EA 358
  • Anarita Karimi Njeru vs Republic
    (1979) eKLR
  • Sostenah Ogero Taracha v Ethics and Anti-Corruption Commission and Attorney General
    (2017) eKLR
  • Sella Rose Anyango v Attorney General and 2 Others
    (2021) eKLR
On appeal from
High Court at Nyamira
Petition No. E002 of 2023
Jurisdiction invoked
Jurisdiction vested in the ELRC following transfer from the High Court for lack of jurisdiction; employment and labour relations jurisdiction

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 v County Government of Nyamira & 4 others (Petition 3 of 2023) [2023] KEELRC 3209 (KLR)", Case Analysis (2023). Petition No. 3 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3209/eng@2023-12-07

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