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ELRCDismissedPetition dated 27th August 2023· [2024] KEELRC 1398 (KLR)

Omao v County Government of Kisii & 4 others (Petition E023 of 2023) [2024] KEELRC 1398 (KLR)

Environment and Land Court / ELRC (High Court sitting at Kisumu)
13 June 2024
CBC. N. Baari
3,581 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a challenge to Kisii County's project recruitment because the petitioner offered no evidence, confirming counties can hire for donor-funded projects without the Public Service Board.

What this practically means

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Executive summary

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The Petitioner, a public-interest litigant, challenged an advertisement published in the Daily Nation on 22nd August 2023 inviting applications for what he alleged were 662 non-existent posts, said to cost about Ksh. 50,000,000 monthly in salaries. He sought declarations of violations of Articles 27, 28, 41, 47 and 55, orders of certiorari quashing the advertisement, and permanent injunctions restraining recruitment and admission of the recruits to the County payroll, contending there was no budgetary provision, no annual recruitment plan, and that the 5th Respondent had usurped the County Public Service Board's mandate. The Respondents replied that the recruitment was a short-term National Government project (NAVCDP) run with donor resources, that the County CPSB and budget had no role, and that the petition lacked precision and evidence. The court framed two issues: whether the advertisement contravened constitutional provisions, and whether the Petitioner was entitled to the reliefs. It found the recruitment related to a donor project outside the county public service, so the CPSB's statutory mandate under Sections 59(1) and 63 of the County Government Act was not engaged and no county budget was required. Assertions of political cronyism were unproven conjecture. Applying the Anarita Karimi precision standard and the requirement of tangible evidence of violation, the court held the Petitioner failed to discharge the burden of proof. The petition was dismissed with no order on costs, the court noting this was public interest litigation.

Key legal issues

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01

Whether the impugned advertisement violated the Constitution, including by circumventing the County Public Service Board's mandate

Holding

No violation; the recruitment related to a donor-funded project outside the county public service, and the CPSB had no mandate over it

Reasoning

The court found the advertised positions related to a project run jointly by the County Government, the National Government and a donor (World Bank NAVCDP). Sections 59(1) and 63 of the County Government Act confine CPSB appointments to offices in the county public service. Project-bound appointments fall outside that mandate, and no county budget provision was needed since no county funds were used.

p. 7
02

Whether the Petitioner proved the alleged violations of Articles 27, 28, 41, 47 and 55

Holding

No; the petition lacked precision and evidentiary support

Reasoning

Applying the Anarita Karimi standard, the court held the petition did not state with precision how the cited rights were infringed. Apart from the advert and approved budget, no tangible evidence was presented; assertions of political cronyism were mere conjecture. Courts decide on evidence, not speculation.

p. 8

Legal principles established

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  • The County Public Service Board has no role in recruitment to donor/project positions outside the county public service
  • A petitioner alleging constitutional violations must plead with precision and substantiate the violations with evidence

Court orders

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  1. 1.The petition is hereby dismissed
  2. 2.No orders on costs, this being a public interest litigation suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(2), 10, 23, 27, 28, 41, 47, 50(1), 55, 207, 232, 236; Chapter 12
  • County Government Act, No. 17 of 2012Sections 59(1), 63
  • Public Finance Management Act, 2012Section 162
  • Employment Act, 2007-

Cases cited (8)

  • Biwott v County Public Service Board Baringo County & another
    (Constitutional Petition E10 of 2022)[2022] KEELRC 1360 (KLR)
  • Speaker Nakuru County Assembly & 46 Others v Commission on Revenue Allocation & 3 others
    [2015] eKLR
  • David Ngige Tharau & 128 Others v Principal Secretary Ministry of Lands Housing and Urban Development & 2 others
    [2016] eKLR
  • Anarita Karimi Njeru v Republic (No 1)
    [1979] KLR 154
  • Christian Juma Wabwire v Attorney General
    [2019] eKLR
  • Lt Col Peter Ngari Kagume and 7 others v AG
    Constitutional Application No 128 of 2006
  • Philip Njoroge v Liberty Africa Technologies Limited & Another
    (2021) eKLR
  • Kiambu County Tenants Welfare Association v Attorney General & another
    (2017) eKLR
Jurisdiction invoked
Article 23 of the Constitution - enforcement of fundamental rights and freedoms (constitutional petition)

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 Kisii & 4 others (Petition E023 of 2023) [2024] KEELRC 1398 (KLR)", Case Analysis (2024). Petition dated 27th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1398/eng@2024-06-13

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