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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of alternative remedies
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.
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.
Locus standi of the Ex parte Applicant
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.
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.
Legality of the advertisements of 17th and 18th January 2024
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.
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.
Appropriate remedies
A declaration of unlawfulness and certiorari to quash the advertisement and subsequent actions were granted; mandamus with personal refund liability was not granted.
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.
Legal principles established
#- 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
#- 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.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.Each party to bear their own costs, the suit being public interest litigation
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.