[2025] KEELRC 1575 (KLR)

[2025] KEELRC 1575 (KLR)

The Court held that it had jurisdiction to determine the constitutionality of statutes and administrative actions relating to employment and labour relations. The Statute Law (Miscellaneous Amendments) Act No. 3 of 2024, which purported to transfer powers from the Public Service Commission to the Office of the...

Source-derived case information.

Citation
[2025] KEELRC 1575 (KLR)
Parties
Applicant: Magare Gikenyi B; Applicant: Dishon Keroti Mogire; Applicant: Philemon Abuga Nyakundi; Respondent: Attorney General; Respondent: Advisory Board to the Office of the Attorney General; Respondent: Public Service Commission; Respondent: Solicitor General; Respondent: National Assembly
Court
Employment and Labour Relations Court
Court Station
Employment and Labour Relations Court at Nairobi
Jurisdiction
Kenya
Case Number
Petition E202 of 2024
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed. Impugned amendments and promotions declared unconstitutional, null and void. Orders of certiorari and prohibition granted. Directions issued for future compliance with constitutional and statutory requirements. No order as to costs.
Judges
B Ongaya
Legal Topics
Public Service Appointments, Judicial Review, Constitutional Validity of Statutes, Fair Labour Practices, Public Participation, Gender and Ethnic Balance
Source Language
en
Constitutional Law Employment and Labour Administrative Law Public Service Appointments Judicial Review Constitutional Validity of Statutes Fair Labour Practices Public Participation +1 more

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Parties

Magare Gikenyi B

Applicant

Dishon Keroti Mogire

Applicant

Philemon Abuga Nyakundi

Applicant

Attorney General

Respondent

Advisory Board to the Office of the Attorney General

Respondent

Public Service Commission

Respondent

Solicitor General

Respondent

National Assembly

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the Employment and Labour Relations Court has jurisdiction to determine the constitutionality of amendments to the Office of the Attorney General Act affecting public service appointments.
  2. 2 Whether the Statute Law (Miscellaneous Amendments) Act No. 3 of 2024, which transferred powers from the Public Service Commission to the Office of the Attorney General, is unconstitutional for lack of public participation and for undermining constitutional commissions.
  3. 3 Whether the promotions and appointments of senior staff in the Office of the Attorney General were unconstitutional for lack of fair competition, merit, gender, ethnic and regional balance, and adherence to approved human resource instruments.

Ratio Decidendi

The Court held that it had jurisdiction to determine the constitutionality of statutes and administrative actions relating to employment and labour relations. The Statute Law (Miscellaneous Amendments) Act No. 3 of 2024, which purported to transfer powers from the Public Service Commission to the Office of the Attorney General regarding appointments and promotions, was found unconstitutional. The Court found that the amendment was substantive, controversial, and not suitable for a miscellaneous amendments bill; it was passed without adequate public participation and undermined the constitutional independence and oversight role of the Public Service Commission. The promotions and...

Court Disposition

Petition allowed. Impugned amendments and promotions declared unconstitutional, null and void. Orders of certiorari and prohibition granted. Directions issued for future compliance with constitutional and statutory requirements. No order as to costs.

Orders

  • Declaration that the actions of the 1st and 2nd respondents in respect of the impugned promotions were in violation of Articles 10, 27, 41, 47, 232, 234(2) of the Constitution and relevant statutes and regulations.
  • Declaration that all appointments and promotions (other than for common establishment positions) in the Office of the Attorney General must be based on fair competition, merit, gender, ethnic and regional balance.