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ELRCPartially AllowedConstitutional Petition (Kisii County Attorney appointment)· [2024] KEELRC 11 (KLR)

Omao & another v Arati (Governor County Government of Kisii) & 5 others; Nyandieka (Interested Party) (Petition E014 of 2023) [2024] KEELRC 11 (KLR)

Employment and Labour Relations Court of Kenya (court not expressly named in the judgment excerpt; presided over by Judge Radido Stephen, sitting in Kisumu)
24 January 2024
RSRadido Stephen
2,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kisii County's direct appointment of a County Attorney without public advertisement was quashed because the law requires advertised, Assembly-approved appointments.

What this practically means

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Executive summary

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The Petitioners challenged the appointment of Alfred Ongiri Nyandieka as County Attorney of Kisii County, gazetted on 30 November 2022 and appointed by letter on 1 December 2022, arguing it breached constitutional values, statutory requirements on public appointments, and was made without public advertisement, competitive recruitment or involvement of the County Public Service Board. The 1st to 4th Respondents (the Governor, County Secretary, Clerk and Speaker) maintained that the Governor nominated the Interested Party under sections 5 and 6 of the Office of the County Attorney Act, that public notice was published in the Daily Nation inviting comments, and that the County Assembly vetted and approved the nomination on 29 November 2022. They relied on Commission for Human Rights and Justice v Michelle Bibi Fondo to argue no competitive recruitment was required. The 5th to 7th Respondents and the Interested Party contended all statutory procedures were followed and that the Petition was brought in bad faith. The court noted the Petitioners' delay in filing submissions but declined to dismiss the Petition on that ground. On the merits, it held that the appointment was procedurally non-compliant with sections 5(1) and 8(a) of the Public Appointments (County Assemblies Approval) Act because the position was never advertised and no explanation was given for the nomination. However, it found public participation was properly conducted through the County Assembly and that the County Public Service Board need not be involved where the office is statutorily established. The court declared the appointment non-compliant and quashed it by certiorari, but denied the Petitioners costs for non-compliance with filing directions.

Key legal issues

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01

Whether non-compliance with sections 5(1) and 8(a) of the Public Appointments (County Assemblies Approval) Act vitiated the appointment

Holding

Yes - failure to advertise and explain the shortlisting/nomination procedure rendered the appointment procedurally non-compliant and it was quashed by certiorari.

Reasoning

Section 5(1) of the Public Appointments (County Assemblies Approval) Act presupposes an advertisement inviting applications; section 8(a) requires the Assembly to consider the procedure used to arrive at the nominee including shortlisting. It was not disputed the Governor did not advertise the position, and no explanation was given as to how the Interested Party became the nominee. The nomination therefore failed the statutory threshold.

p. 6
02

Whether public participation was conducted

Holding

Yes - the County Assembly conducted public participation through newspaper notice inviting memoranda, and none was received.

Reasoning

The Clerk published notice in the Daily Nation on 17 November 2022 inviting public comments and memoranda before vetting on 25 November 2022. The Clerk's affidavit asserting no memorandum or petition was received was uncontroverted. Participation through the Assembly satisfies the statutory framework for appointments of this kind.

p. 7
03

Whether the County Public Service Board was required to be involved

Holding

No - the office is established by statute and the Governor may nominate directly with Assembly approval.

Reasoning

Relying on Commission for Human Rights and Justice v Michelle Bibi Fondo, the court held that the office of County Attorney is expressly established by the Office of the County Attorney Act; no creation of office or competitive recruitment by the Board was required. The Governor may invoke his own procedures subject to constitutional values.

p. 7
04

Whether the Petition should be dismissed for failure to prosecute

Holding

The court found the Petitioners had failed to prosecute by missing the submission deadline but declined to dismiss in the interest of substantive justice, and decided on the merits.

Reasoning

Petitioners filed submissions on 8 January 2024 against a 3 November 2023 deadline without explanation. The court observed this amounted to abandonment and that the Petition should have been rejected, but opted for substantive justice and considered the merits anyway.

p. 5

Legal principles established

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  • An appointment requiring approval of a County Assembly must follow the Public Appointments (County Assemblies Approval) Act, including advertisement inviting applications and consideration of the shortlisting procedure.
  • Where the office of County Attorney is expressly established by statute, the County Public Service Board need not create the office or conduct competitive recruitment.
  • Public participation in appointments such as County Attorney is undertaken by and through the County Assembly.

Court orders

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  1. 1.A declaration that the appointment of the Interested Party as the County Attorney was procedurally non-compliant with the provisions of sections 5(1) and 8(a) of the Public Appointments (County Assemblies Approval) Act
  2. 2.An order of certiorari quashing the appointment of the Interested Party as County Attorney of the Kisii County Government
  3. 3.Costs denied to the Petitioners for non-compliance with court directives

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 35(1)(b) and (2), 36(1), 47, 50(1) and (2), 159(2)(e), 185(3), 196, 232(1)(g) and (2)(a)
  • Public Service (Values and Principles) ActSections 17(2)(i) and 17(2)(e)
  • Public Service Commission ActSection 37
  • Public Appointments (County Assemblies Approval) ActSections 4, 5, 5(1), 6(2), (3) and (4), 7, 7(4) and (5), 8(a), 9(1)
  • County Governments ActNot specified
  • Office of the County Attorney Act, 2020Sections 4, 5, 5(1), 5(2), 6
  • Kisii County Assembly Standing OrdersStanding Orders Nos. 42, 42(4), 65, 180

Cases cited (2)

  • Commission for Human Rights and Justice v Michelle Bibi Fondo
  • R v Public Procurement Administrative Review Board & 2 Ors
    (2019) eKLR
Jurisdiction invoked
Constitutional petition under Articles 10, 47, 232 of the Constitution and the Office of the County Attorney Act, 2020 (specific jurisdictional provision not stated in the judgment)

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 (Governor County Government of Kisii) & 5 others; Nyandieka (Interested Party) (Petition E014 of 2023) [2024] KEELRC 11 (KLR)", Case Analysis (2024). Constitutional Petition (Kisii County Attorney appointment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/11/eng@2024-01-24

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