Ngei v County Chief Officer Public Service Management and Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2024] KEELRC 1129 (KLR)
The bottom line
#Kenya's Employment Court quashed Migori County's 2023 recruitment adverts, confirming that county hiring must go through the County Public Service Board, not executives.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to entertain this matter
- 2.Whether the Ex-parte Applicant has the requisite locus to institute these proceedings
- 3.Whether the advertisements of 5th May, 2023, and the consequent recruitments were in violation of the law
- 4.Whether the Ex-parte Applicant is entitled to the reliefs sought
Key legal issues
#Jurisdiction and functus officio
The court had already determined its jurisdiction in a ruling of 12th October 2023 dismissing a preliminary objection; it could not revisit the issue, the Respondent's remedy being appeal.
Despite the Respondent raising jurisdiction afresh in his replying affidavit and submissions, the court held that having substantively addressed the issue in the ruling of 12th October 2023, it was functus officio. The Respondent's only recourse was on appeal. The jurisdictional objection grounded on employer-employee relationship and exhaustion was therefore not entertained.
Locus standi of the Ex-parte Applicant
The Applicant had locus under Article 3(1), Article 22, Article 23, Article 47 and Section 5(2)(b) & (c) of the Fair Administrative Actions Act, notwithstanding the absence of an employer-employee relationship.
The Respondent argued that only employer-employee disputes fall within the ELRC's jurisdiction per Article 162(2) and Section 12(1) of the ELRC Act, citing authority that recruitment steps fall outside Section 12. The court instead rested standing on the entrenchment of judicial review and the constitutional right to challenge threatened violations of rights, including fair administrative action under Article 47, and found the Applicant properly before the court.
Legality of the advertisements and recruitments
The advertisements placed pursuant to a County Executive Committee directive were unlawful because recruitment and appointment of county public officers is a function reserved solely for the County Public Service Board under Sections 59(1) and 63 of the County Government Act.
The Respondent admitted placing the advertisements on the direction of the County Executive Committee communicated through the County Secretary. The court found that neither Section 36 (CEC functions) nor Section 44(3) (County Secretary mandate) includes recruitment or appointments; that role is reserved to the CPSB and is non-transferable. The claim that the CPSB processed the applications was unsupported, as the CPSB did not file an affidavit to confirm it.
Entitlement to reliefs
Certiorari and prohibition were granted; the mandamus and declaration prayers were not carried into the final orders.
Having found the advertisements unlawful, the court issued certiorari to quash the two advertisements and all consequential actions, and prohibition to restrain implementation or interference with the CPSB. It declined the indemnity costs prayer, awarding ordinary costs.
Legal principles established
#- A county government can only recruit and appoint county public officers through the County Public Service Board; the recruitment function is not transferable to the County Executive Committee or County Secretary
- Once a court has substantively rendered itself on an issue, it becomes functus officio and cannot revisit it; the aggrieved party's recourse is appeal
- Article 22 of the Constitution and Section 5(2)(b) & (c) of the Fair Administrative Actions Act confer standing on any person to challenge threatened or actual violations, irrespective of an employer-employee relationship
Court orders
#- 1.An Order of Certiorari issued to remove into the court for purposes of quashing the impugned decisions reposed in public advertisements dated 5th May 2023 referenced CGM/PSMD/001/2023 and CGM/PSMD/002/2023 and all consequential actions, decisions and proceedings thereon
- 2.An Order of Prohibition issued prohibiting the Respondent, his agents or employees from implementing, operationalizing, validating or giving effect to the impugned decision reposed in the said advertisements and all consequential actions, decisions and proceedings thereon, or in any way interfering with the management and operations of the Migori County Public Service Board contrary to the law
- 3.The Respondent shall bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12(1) of the Employment and Labour Relations Court Act; judicial review and Bill of Rights jurisdiction under Articles 22, 23 and 47 and the Fair Administrative Actions Act
Relief refused
#Order of mandamus requiring the Respondent to publish a public notice of equal prominence recalling the impugned advertisements, at his personal resources
Not among the orders ultimately made in the disposition
Order of mandamus requiring the Respondent to implement the recommendations of the Migori County Assembly in respect of absorption of casual and temporary employees, including vacating dismissals and resumption of positions
Not among the orders ultimately made in the disposition
Declaration that the impugned decision was an unlawful usurpation of authority reserved for the Migori County Public Service Board and the National Government
Not included in the final orders; the court granted only certiorari and prohibition
Costs on a full indemnity basis
The court awarded ordinary costs of the suit against the Respondent instead
Costs
The Respondent shall bear the costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That an Order of Certiorari be and is hereby issued to remove into this court for purposes of quashing the impugned decisions of the Respondent herein, reposed in public advertisements both dated 5th May 2023 as referenced CGM/PSMD/001/2023 and CGM/PSMD/002/2023, and all the consequential actions, decisions and proceedings thereon.
That an Order of Prohibition be and is hereby issued to prohibit the Respondent either by himself, agents or employees from implementing, operationalizing, validating and/or giving efiect to the impugned decision reposed in the public advertisements both dated 5th May 2023
That the Respondent shall bear the costs of the suit.
It is abundantly clear that a County government can only recruit and appoint through the CPSB.
It is trite law that once a court has rendered itself on an issue, it becomes functus oficio.
In light of the foregoing, I find and hold that the Ex Parte Applicant has locus to institute the instant proceedings, and is properly before this court.
Issues in the judgment
#The names of the Ex Parte Applicant, the Respondent and the Interested Party are not stated anywhere in the judgment; the parties are identified only by their procedural roles.
The Respondent's replying affidavit depones that the advertisement usurps the functions of the National Police Service, an apparent typographical error for the National Government as pleaded in the motion, but the judgment does not resolve this.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngei v County Chief Officer Public Service Management and Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2024] KEELRC 1129 (KLR)", Case Analysis (2024). JR No. E024 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1129/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.