[2021] KEELRC 439 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MALINDI

PETITION NO E001 OF 2020

IN THE MATTER OF ARTICLES 1,2,3(1),4,10,19,20,21,23,27,33,35,47,48,

50,73,165 AND 232 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF ARTICLE 35 OF THE CONSTITUTION ON THE

PROTECTION OF FUNDAMENTAL RIGHTS OF ACCESS TO INFORMATION

IN THE MATTER OF ARTICLE 10 OF THE CONSTITUTION OF

KENYA 2010 ON NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE

IN THE MATTER OF SECTION 66, 68 AND 78 OF THE COUNTY

GOVERNMENT ACT

IN THE MATTER OF ARTICLE 75(1) A OF THE CONSTITUTION

ON CONFLICT OF INTEREST BY PUBLIC OR STATE OFFICERS

HOLDING TWO DIFFERENT POSITIONS SIMULTANEOUSLY

IN THE MATTER OF THE PUBLIC RIGHT TO INFORMATION

AND ADHERENCE TO DUE PROCESS ON APPOINTMENT

OF COUNTY ATTORNEY, KILIFI COUNTY GOVERNMENT

BETWEEN

COMMISSION FOR HUMAN RIGHTS AND JUSTICE....................................PETITIONER

VERSUS

MICHELLE BIBI FONDO.............................................................................1ST RESPONDENT

H.E GOVERNOR, KILIFI COUNTY GOVERNMENT............................2ND RESPONDENT

PUBLIC SERVICE BOARD, KILIFI COUNTY GOVERNMENT..........3RD RESPONDENT

RULING

a) Introduction

1. The 1st and 2nd Respondents have filed the application dated 16th August 2021 seeking stay and or suspension of a section of this court’s judgment (differently constituted) delivered on 12th March 2021. The contested section of the decision relates to the tenure of the 1st Respondent as County Attorney, Kilifi County. The two Respondents want the portion of the judgment aforesaid stayed and or suspended pending the hearing and determination of the appeal now pending before the Court of Appeal.

2. The application is opposed by the Petitioner who has filed a replying affidavit. The 3rd Respondent filed no response in respect of the application.

b) The Issues as they appear from the Pleadings and Submissions

3. The main dispute before the learned Judge was whether the 1st Respondent was, in view of the provisions of the Office of the County Attorney Act, 2020 (OCAA), lawfully in office as the County Attorney of the County Government of Kilifi. The 1st Respondent had been appointed by the 3rd Respondent into that position sometime in 2018. This was after the 3rd Respondent established the office of County Attorney for the County Government of Kilifi. The appointment was validated by the County Assembly of the County Government of Kilifi as was required by law.

4. Around 13th July 2020, the OCAA was enacted by Parliament. It came into force on 27th July 2020. As appears from the Act, the holders of the office of County Attorney were henceforth to be appointed by the Governors of the respective Counties. However, those who were already serving as County Attorneys on the effective date were to transition to the County Attorney’s office as established under the new Act.

5. It would appear that the Petitioner held the view that upon the coming into force of the OCAA, the position of County Attorney was to be advertised a fresh and competitive recruitment of the occupant of the office done by the 3rd Respondent. As the 2nd and 3rd Respondents did not undertake this process in respect of the 1st Respondent, the Petitioner moved to court to challenge the continued stay in office by the 1st Respondent as unlawful.

c) The Impugned Order

6. In his judgment delivered on 12th March 2021, the learned trial Judge found the Petition as substantially lacking in merit. He therefore dismissed it. In the learned Judge’s view, the 1st Respondent was validly in office pursuant to the operation of section 31 of the OCAA which provided for transition of officers who were already in office when the Act came into force.

7. However, the court issued a declaration in respect of the 1st Respondent’s tenure in the following terms:-

‘’ That in view of the prayers in the Petition and the findings by the court, a declaration is hereby issued that the letter ref. no. CG/KLF/OG/VOL. 1 dated 14. 10. 2020 is amenable to correction in clause 1 to effectively reflect thus, ‘’You will continue in service as County Attorney, Kilifi County, for a term commensurate to the term of the current Governor or until lapsing of six years from 27. 07. 2020 whichever comes first.’’

d) Submissions by the Parties

8. The 1st and 2nd Respondents argue that by this declaration the trial Judge was simply stating that in computing the balance of the term of the 1st Respondent, the County Government has to consider only the balance of the term of the 1st Respondent before transition as this is what was protected by the transition provision. This according to the 1st Respondent would mean that she has to exit office in August 2022 when the current Governor’s term lapses. Yet, she holds the view that she is entitled to serve as County Attorney for 6 years as from 14th October 2020, the date she was given the letter of appointment under the OCAA. This, as the 1st Respondent argues, is hinged on section 6 of the OCAA which entitles County Attorneys to hold office for six years from the date of their appointment.

9. The 1st and 2nd Respondents argue that the question of the term of the 1st Respondent was neither raised in the pleadings filed in court nor the submissions by the parties. Therefore, the parties had no opportunity to canvass the matter before the trial Judge rendered his decision on it. Yet, the pronouncement has the grave consequence of clawing back the duration the 1st Respondent was to remain in office from approximately 6 years to less than 2 years.

10. On its part, the Petitioner argues that there is no valid appeal pending before the Court of Appeal. According to the Petitioner, the Notice of Appeal instituting the alleged appeal has never been served on it. Further, the period within which to file the appeal has long run out without the 1st and 2nd Respondent lodging the Memorandum of Appeal. Therefore, the application is misconceived.

e) Analysis by the Court

11. I have looked at the Petition filed and the replies by the Respondents. Indeed, it appears that the issue of tenure of the 1st Respondent was not raised, at least directly. However, it features indirectly in the submissions by the parties (both oral and written). It also appears to me that though not raised, the issue was incidental to the matter that the trial court was invited to consider and decide on.

12. However, whether it was correct for the trial court to have considered the matter when it had not been raised directly in the cause is not an issue that I have jurisdiction to address. This is a matter that only the appellate court has jurisdiction to address. At this point, all I can say is that the Respondents appear to raise a material question of law that deserves a second opinion by the appellate court.

13. I am at the same time convinced that the 1st Respondent is likely to suffer substantial loss if the impugned order is implemented only for her appeal to succeed. She would have lost her job which is, in law, time bound.

14. I have considered the objection to the application as raised by the Petitioner. All I would say in reaction to the position taken by the Petitioner is that the issues raised by the Petitioner in its replying affidavit appear to have been satisfactorily countermanded by the 1st Respondent in her supplementary affidavit dated 14th October 2021.

f) Determination

15. I am therefore inclined to grant (which I hereby do) an order suspending the part of the order set out in paragraph 3 of the application dated 16th August 2021 pending the determination of the appeal. For the avoidance of doubt the order referred to is as set out in paragraph 7 of this ruling.

16. The 1st Respondent has offered to provide security for making good any loss that may be suffered by the County Government of Kilifi should she lose the appeal. To my mind, the loss anticipated in the cause would be the emoluments paid to the 1st Respondent by the County Government of Kilifi from the date her contract would have lapsed in terms of the decision of the trial Judge. I will therefore require that the 1st Respondent issues the Petitioner an irrevocable undertaking to pay back to the County Government of Kilifi all the emoluments she would have drawn from the said County in the event the appeal is lost by her. This undertaking should be issued within 30 days of this ruling. The terms of the undertaking may be settled by the Deputy Registrar of the court should the parties fail to agree on them.

17. The Applicants shall pay the Petitioner the costs of this application.

DATED, SIGNED AND DELIVERED ON THE 16TH DAY OF NOVEMBER, 2021

B O M MANANI

JUDGE

In the presence of:

…………………………………..for the Petitioner

………………………………….for the 1st and 2nd Respondents

………………………………… for the 3rd Respondent

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B O M MANANI