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High CourtPartially AllowedPetition (Amended Petition dated 16th July 2014)· [2015] KEHC 7639 (KLR)

Okiya Omtatah Okoiti & another v George Onyango Oloo & others

High Court of Kenya
11 September 2015
Isaac LenaolaIsaac Lenaola
3,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Public officers who receive government funding or salaries are legally barred from holding leadership roles within political parties in Kenya.

What this practically means

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Executive summary

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The Petitioners challenged the continued tenure of George Onyango Oloo as Secretary-General of The National Alliance (TNA) Party following his appointment by the President as Chairperson of the Lake Basin Development Authority (LBDA) vide Gazette Notice No.15745 of 23rd December 2013. They sought declarations that he was disqualified from holding party office and that public officers generally cannot hold office in political parties, plus costs on a full indemnity basis. The 1st and 2nd Respondents raised a preliminary objection contending the dispute fell within the Political Parties Act, that the Petition was premised on perjury, and that the 1st Respondent was not a State Officer; they filed no submissions. The Registrar of Political Parties, as Interested Party, produced a circular of 4th July 2013 advising that public officers cannot hold party office. The court first held it had jurisdiction under Article 165(3)(d), as no specific provision of the Political Parties Act was cited to displace it. On the merits, applying the Supreme Court's binding definition of 'public officer' in Fredrick Otieno Outa and the KUDHEIHA criteria, and reading Sections 11 and 4(6) of the LBDA Act (Parliamentary funding and remuneration of the Chairman), the court found the 1st Respondent is a public officer. Section 12 of the Political Parties Act, Section 23 of the Leadership and Integrity Act and Section 16 of the Public Officer Ethics Act bar public officers from holding party office. The court issued both declarations sought but declined indemnity costs, ordering each party to bear its own costs, noting the Petitioners acted in the public interest.

Key legal issues

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01

Jurisdiction of the High Court over the dispute despite the Political Parties Act

Holding

The High Court has jurisdiction under Article 165(3)(d) to determine whether the Constitution has been contravened; no specific provision of the Political Parties Act was cited to oust it

Reasoning

The court held that questions of constitutional contravention and interpretation of Articles 10, 232 and 260 fall squarely within the High Court's mandate under Article 165(3)(d). The respondents' suggestion that the Political Parties Act mechanisms should have been used failed because no specific provision was cited, and the court declined to speculate on unargued grounds.

p. 4
02

Whether the Chairman of LBDA is a public officer barred from holding party office

Holding

Yes - as Chairman of LBDA, which receives funds from Parliament and pays its Chairman from those funds, the 1st Respondent is a public officer and cannot retain the TNA Secretary-General position

Reasoning

Applying the Supreme Court's binding definition of 'public officer' (Outa) and the KUDHEIHA criteria (institutions funded by Parliament fall within public office), and reading Section 11 of the LBDA Act (Parliamentary funding) with Section 4(6) (remuneration of the Chairman), the court concluded the 1st Respondent is a public officer. Section 12 of the Political Parties Act, Section 23 of the Leadership and Integrity Act and Section 16 of the Public Officer Ethics Act bar public officers from holding party office.

p. 8

Legal principles established

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  • A person appointed to chair a State corporation funded by Parliament and paid from those funds is a public officer within Article 260 and cannot hold office in a political party
  • The Supreme Court's definition of 'public officer' in Article 260 as read with Section 2 of the Elections Act is binding on the High Court

Court orders

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  1. 1.A declaration that the 1st Respondent as a public officer is disqualified from holding the office of National Secretary General of the National Alliance or any other office in that political party
  2. 2.A declaration that a public officer shall not hold office in a political party
  3. 3.Each Party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 77(2), 163(7), 165(3)(d), 232, 260; Chapter Six
  • Political Parties Act 2011Sections 2, 12, 13
  • Leadership and Integrity Act, Cap.182Sections 2, 23
  • Public Officer Ethics Act, Cap.183Section 16
  • Lake Basin Development Authority Act, 2012Sections 2, 4(6), 11
  • Elections ActSection 2
  • State Corporations ActSection 3
  • Exchequer and Audit Act (Cap 412)Definition of public funds

Cases cited (3)

  • KUDHEIHA vs Salaries and Remuneration Commission
    [2014] eKLR

    Criteria for determining who is a public officer - institutions funded by Parliament and their employees fall within public office

  • Fredrick Otieno Outa vs Jared Odoyo Okello & 4 Others
    Supreme Court Petition No.6 [2014] eKLR

    Binding definition of 'public officer' under Article 260 as read with Section 2 of the Elections Act

  • Constitutional Petition No. 17 of 2010 (Mombasa, Kasango, Muriithi and Nzioka JJ)
    Judgment delivered 17th September 2012

    Held that Hon. Uhuru Kenyatta as a State Officer was disqualified from holding a political party post

Jurisdiction invoked
Article 165(3)(d) of the Constitution - jurisdiction to hear questions respecting interpretation of the Constitution and whether it has been contravened

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, "Okiya Omtatah Okoiti & another v George Onyango Oloo & others", Case Analysis (2015). Petition (Amended Petition dated 16th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/7639/eng@2015-09-11

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