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ELRCPartially AllowedJudicial Review E006 of 2024 (Notice of Motion dated 27th February 2024)· [2024] KEELRC 1505 (KLR)

Republic v Migori County Government, Office of the County Public Service Board; Omondi (Exparte Applicant); County Government of Migori & 5 others (Interested Parties) (Judicial Review E003 of 2024) [2024] KEELRC 1505 (KLR)

Employment and Labour Relations Court
19 June 2024
5,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's employment court quashed Migori County's job advertisements, ruling that recruitment by a board barred from operating by a court status quo order is a legal nullity.

What this practically means

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Executive summary

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The Ex Parte Applicant, a civil rights activist, moved the ELRC at Kisumu by Notice of Motion dated 27th February 2024 seeking a declaration, certiorari and mandamus against the advertisement of county vacancies in the Standard Newspaper of 17th and 18th January 2024, contending the recruitment was conducted by persons without legal authority owing to a Court of Appeal status quo order of 6th July 2023 in Civil Application E066 of 2023 barring replacement of the old Migori County Public Service Board. The County Government of Migori and the Board were joined as Respondents. They opposed, arguing want of jurisdiction for failure to exhaust PSC appeal remedies, lack of locus since the Applicant was not an employee or job applicant, non-compliance with Order 53, and that the Board lawfully existed and placed the advertisement. The court framed four issues: jurisdiction, locus, legality of the advertisements, and entitlement to reliefs. It held the judicial review remedy and the alleged constitutional violations were outside the PSC's appellate purview, giving it jurisdiction; that Articles 3(1) and 22 and Section 5 of the FAAA conferred locus on the Applicant; and that, because the status quo order prevented the old board from being replaced, Migori County had no operational CPSB with legal capacity to recruit, rendering the advertisement void and a nullity. The court granted a declaration of unlawfulness and certiorari quashing the advertisement and subsequent actions, refused the mandamus for personal refunds, and ordered each party to bear own costs as public interest litigation.

Key legal issues

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01

Jurisdiction and exhaustion of alternative remedies

Holding

The Court had jurisdiction because the alleged violations of fundamental rights and the judicial review remedy sought are not within the purview of the Public Service Commission's appellate mandate.

Reasoning

The Respondents argued that the applicant should have exhausted the PSC appeal mechanism under Article 234(2)(i), Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act. The court held that the alleged violations of specific fundamental rights were not contemplated in the appeals to the PSC, and that judicial review, being the remedy sought, is not within the PSC's purview, so the issues cannot be remedied elsewhere other than before court.

p. 8
02

Locus standi of the Ex parte Applicant

Holding

The Applicant, a civil rights activist, had locus under Articles 3(1) and 22 of the Constitution and Section 5(2)(b) & (c) of the Fair Administrative Actions Act despite lacking employer-employee relationship.

Reasoning

The Respondents contended that an employer-employee relationship under Section 12(1) of the ELRC Act was a prerequisite. The court held that judicial review is entrenched in the Constitution, Article 22 permits any person to institute proceedings claiming that a right has been denied, violated or infringed or is threatened, and Section 5 of the FAAA empowers anyone to apply for review of administrative action. The applicant therefore had locus.

p. 9
03

Legality of the advertisements of 17th and 18th January 2024

Holding

The advertisements were unlawful and a nullity because Migori County did not have an operational County Public Service Board with legal capacity to recruit, the Court of Appeal status quo order having barred replacement of the old board.

Reasoning

Although the Respondents asserted that a new board was appointed on 4th July 2023, the Court of Appeal's order of 6th July 2023 in Civil Application E066 of 2023 maintained the status quo such that the old board members were out of office and were not to be replaced. The court reasoned that the Superior Court could not have intended two boards to concurrently remain in office, and the Respondents did not show the orders had been lifted. Recruitment by persons lacking authority was therefore void.

p. 10
04

Appropriate remedies

Holding

A declaration of unlawfulness and certiorari to quash the advertisement and subsequent actions were granted; mandamus with personal refund liability was not granted.

Reasoning

Having found the impugned administrative action void, the court found the motion merited in substantial part and issued a declaration and certiorari. The prayer for mandamus requiring the publisher to personally refund public sums was not included in the final orders, consistent with the Respondents' objection that personal liability would violate Article 236 since the affected individuals were not before the court. Costs were not awarded as the litigation was public interest.

p. 10

Legal principles established

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  • Where a Court of Appeal status quo order provides that members of a public board shall not be replaced in the interim, a purportedly newly appointed board cannot lawfully exercise the functions of that board; action taken by it is void and a nullity in law.
  • A person need not have applied for the advertised position, nor be an employee of the county, to have locus to challenge an unlawful recruitment where constitutional violations of fair administrative action are alleged; judicial review is now entrenched as a constitutional right.

Court orders

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  1. 1.A declaration that the advertisement of vacancies by the Respondents vide the publication in the Standard Newspaper of 17th and 18th January, 2024 was unlawful
  2. 2.An order of Judicial Review in the nature of Certiorari to call up to the court and quash the advertisement of vacancies of 17th and 18th January 2024, together with all actions and/or decisions made subsequent thereon
  3. 3.Each party to bear their own costs, the suit being public interest litigation

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 22, 23, 258, 27(1)(2)(4), 29(d), 41(1)(2), 47, 50(1), 159(1), 159(2)(c), 162(2)(a), 165(3)(d)(ii), 165(6)(7), 176, 232, 234(2)(i), 236(a)(b), 260
  • County Governments ActSections 57, 58, 58(1), 58(4), 59(1)(b), 59A(a)(b), 63, 66, 77(1) and (2)(c)
  • Fair Administrative Actions ActSections 5(2)(b) & (c), 7(1), 7(2)(a)(ii) and (d), 9(4)
  • Public Service Commission ActSections 85, 86, 87(2)
  • Employment and Labour Relations Court ActSections 12(1) and 12(2)
  • Civil Procedure RulesOrder 53 Rules 1(2)(b) and 3
  • Public Service Commission (County Appeals Procedures) Regulations, 2022

Cases cited (10)

  • Republic v Firearms Licensing Board & another Ex parte Boniface Mwaura
    [2019] eKLR
  • Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & Another
    (2018) eKLR
  • Republic v Speaker of the National Assembly and 4 Others ex-parte Edward R.O. Ouko
    [2017] eKLR
  • Macfoy vs. United Africa Co. Ltd
    [1961] 3 All E.R. 1169
  • Onesmus Sintole Saidimu v Sane Ole Saidimu Nkikoora & 5 others
    [2021] eKLR
  • Cortec Mining Kenya Ltd vs Cabinet Secretary Ministry of Mining & 9 Others
    [2015] eKLR
  • Owners of the Motor vessel "Lilian S" -vs- Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Judicial Service Commission V Mbalu Mutava & another
    (2015) eKLR
  • Hon Jared Opiyo & 5 Others v Migori County Assembly & Others (Civil Application E066 of 2023)
    Kisumu Civil Application No E066 of 2023
Jurisdiction invoked
Articles 162(2)(a) and 165(3)(d)(ii) of the Constitution, read with Article 23; judicial review under Article 47 and the Fair Administrative Actions Act

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, "Republic v Migori County Government, Office of the County Public Service Board; Omondi (Exparte Applicant); County Government of Migori & 5 others (Interested Parties) (Judicial Review E003 of 2024) [2024] KEELRC 1505 (KLR)", Case Analysis (2024). Judicial Review E006 of 2024 (Notice of Motion dated 27th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1505/eng@2024-06-19

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