Nyapola v Nairobi City County Revenue Authority & 2 others

The 1st respondent's decision to advertise and recruit for positions in the county public service is ultra vires, as Article 235 of the Constitution vests the responsibility for establishing offices, appointing persons, and managing the county public service exclusively in county governments. Pursuant to section 57 of the County Government Act, the County Public Service Board is established as the sole entity mandated to handle appointments, confirmations, disciplinary control and human resource management in the county public service. The 1 st respondent gets a mandate under the Nairobi City County Revenue Administration Act, which does not confer upon it independent human resource management powers that override the constitutional provisions. Any purported exercise of such powers amounts to an abuse of discretion and unreasonableness contrary to section 4 of the Fair Administrative Action Act. The applicant avers in the Affidavit that similarly situated county employees have a legitimate expectation that recruitment processes will adhere to the principles of transparency, accountability, and merit under Article 232 of the Constitution, an expectation now violated by the 1st Respondent's unlawful usurpation. Unless the orders sought are granted, there will be a constitutional violation, undermining devolution and occasioning irreparable prejudice to the integrity of the county public service management. The applicant also filed the Statutory Statement. In reply, the 1st respondent filed the Replying Affidavit of Dr John Ntoiti Mborothi, the interim CEO and averred that the matters herein have been overtaken by events following a meeting held in Mombasa involving representatives of the 1st respondent, the Board, the County Secretary's Office, the County Attorney's Office and the Public Service Management Board. During the consultative meeting, parties deliberated on the concerns raised regarding the recruitment process and resolved to develop a secondment instrument. This is needed to facilitate the secondment of staff from the Board to the Nairobi City County Revenue Authority and provide for the delegation of certain human resource management functions, including recruitment, promotions, and disciplinary processes. Dr Mborothi avers that, following the resolutions, stakeholders were invited to sign the Secondment Agreement. Thus, the advertisement published on the Nairobi City County website, which forms the basis of these proceedings, has since been withdrawn. The ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 2

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challenge recruitment process has since been halted pending finalisation and operationalisation of the agreed Secondment Instrument and the institutional framework. The substratum of the application herein is addressed through ongoing consultative and administrative processes. The respondents remain committed to ensuring all human resource processes are undertaken within the applicable constitutional, statutory and institutional framework. The 2nd and 3rd respondents did not reply. The applicant submitted that these proceedings relate to the advertisement by the 1 st respondent on 26 February 2026 inviting applications from employees of the Nairobi City County public service for 324 positions. Such mandate is with the Board under the Constitution and the County Government Act. The call for applications issued by the 1 st Respondent is ultra vires and should be quashed; further, the 1 st Respondent is prohibited from undertaking such an unlawful mandate. The applicant submitted that the 1st Respondent's recruitment process is ultra vires, thus illegal and unconstitutional, contrary to Article 235(1) of the Constitution and Section 57 of the County Government Act. The 1st respondent is established under Section 4 of the Nairobi City County Revenue Administration Act, and its functions do not include the recruitment, administration, or management of human resources for the Nairobi City County Government. In Robert Mutiso Lelli and Cabin Crew Investment Ltd v National Land Commission & 3 others [2017] eKLR, the court quashed a decision of a statutory body for failure to comply with the legislative purpose. In Joseph Malakwen Lelei & another v Rift Valley Land Disputes Appeals Committee & 2 others [2014] KECA, the court held that where a body has no jurisdiction to arbitrate on a matter before it, then all other grounds become moot. The 1st respondent's internal advertisement and recruitment process is illegal, unconstitutional and should be declared a nullity. The applicant submitted that there is a legitimate expectation of a fair recruitment process. In Transparency International – Kenya v Omondi [2023] KECA, the court held that a legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit or advantage. The ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 3

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protection of legitimate expectation is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public. The applicant thus had a legitimate expectation that the Board would undertake the recruitment process in accordance with articles 232 and 235 of the Constitution and the County Government Act. By bypassing the Board, the 1 st respondent acted without legal mandate and opened the door to an opaque process. The recruitment process thus violates the principles of procedural fairness, reasonableness and fair administrative action. The orders sought in the proceedings herein should be issued with costs. Determination The applicant has challenged the recruitment process initiated by the 1 st respondent through the advertisement published on 26 February 2026 inviting applications for 324 positions. The case is that the 1st respondent is established under the Nairobi City County Revenue Administration Act, and its mandate is limited to the generation, administration, management, and collection of county revenues under section 5 of the constitutive Act. On the other hand, the mandate for the recruitment, appointment, and management of human resources for the Nairobi City County Government is vested in the Board under Section 57 of the County Government Act. Indeed, the 1st respondent filed its reply and admits that pursuant to the proceedings herein, a consultative meeting was held and an agreement drawn under the Secondment Agreement. Dr Ndorothi admits in his replying Affidavit dated 25 May 2026 that the internal advertisement published on the Nairobi City County website, which forms the basis of these proceedings, has been withdrawn. The recruitment process has also been stopped pending finalisation and operationalisation of the agreed Secondment Instrument and the attendant institutional framework. As correctly submitted by the applicant, devolution and the public service are now matters regulated under the Constitution and statute. This is to ensure separation of powers and enhance transparency and accountability. Therefore, Article 235 of the Constitution places the mandate for human resources under the County Government within the framework of uniform norms and standards prescribed by an Act of Parliament. ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 4

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In this case, the establishment of offices in the public service of a County Government, the appointment and confirmation into office, and other appointments are regulated under the County Government Act. The Board has undertaken under section 57 of the County Government Act to carry out mandates for the County Government, including the Nairobi City County Government. 3 In Kosgei v Governor, County Government of Uasin Gishu & 2 others [2026] KEELRC 1756 (KLR) and Maina v County Government of Nyeri & another [2026] KEELRC 1341 (KLR), the court held that the constitutional and legal mandate to recruit, appoint, and discipline employees in the county government public service is upon the Board. Any other party that usurps such mandate acts unlawfully, and any action taken in furtherance thereof is ultra vires. Hence, the respondents cannot hold consultative meetings and come up with an instrument, agreement, deployment instruments or any other understanding to circumvent the Constitution and the law. Article 235(1) of the Constitution and section 57 of the County Government Act are not optional. The functions of the Board shall include the recruitment of persons on behalf of the County/government by establishing an office, abolishing the office, and disciplining such officers in the public service of a County Government. The withdrawal of the advertisement dated 26 February 2026 and the stoppage of the recruitment process are insufficient. Such functions are for the Board to address under the Constitution and the County Government Act. The respondents cannot manage a function that is not within their mandate. To do so is to act ultra vires. An order of certiorari will therefore issue where a decision of a public body is shown to be illegal, irrational, or procedurally improper. The burden, therefore, rests upon the applicant to demonstrate that the impugned decision was undertaken in violation of the Constitution, statutory provisions, or established administrative procedures. In Shipwondo v Deputy County Commissioner & 3 others [2026] KEELRC 1298 (KLR), the court held that the fact of illegality, once established, is sufficient to quash a decision of the public body. The applicant has herein addressed the unlawful action of the 1st respondent, who has since admitted that the publication for recruitment and appointment has been withdrawn. However, the respondents have devised alternative means to continue recruitment under the secondment ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 5

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instrument or agreement. The functions of recruitment, promotion, and disciplinary procedures are vested in the Board under the County Government. An order of prohibition is thus necessary to stop the 1 st respondent, by itself or through other actors, from circumventing the legal mandate of the Board through various understandings and instruments devoid of lawfulness and fairness. The applicant has demonstrated that the orders sought as addressed above should be issued. Judicial review thus becomes the only available remedy. The orders sought by the applicant are well-founded. On this basis, the applicant is entitled to the costs of these proceedings. Accordingly, I find merit in the application by the applicant, which I hereby allow and make the following orders: a) An order of certiorari is hereby issued quashing the 1 st respondent's advertisement and the initiation of a recruitment process for 324 positions in the Nairobi City County public service through the advertisement dated 26 February 2026. b) An order is hereby issued prohibiting the 1st respondent, through itself or any other party acting on its directions, in any manner whatsoever, from continuing the recruitment process for persons in or for the public service over any advertisement for the benefit of the Nairobi City County Government. c) An order of prohibition is hereby issued stopping the 1 st respondent, through itself or other parties, from exercising powers relating to recruitment, appointment or management of the human resources in the Nairobi City County Government outside the jurisdiction of the Nairobi City County Public Service Board mandate. d) The applicant is awarded costs herein to be paid by the 1st respondent. Delivered in open court this 31st day of July 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 6

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……………………………………………… and …………………………………..……… ELRC NAIROBI JUDGMENT JR APPLICATION NO. E033 OF 2026 7

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