[2021] KEELRC 477 (KLR)
The court found that the Respondent, having been served and failing to oppose the application, left the Applicant's assertions uncontroverted. The Applicant demonstrated that the Respondent had disregarded a concluded recruitment process and prior court orders by re-advertising the position of Chief Executive...
Source-derived case information.
- Citation
- [2021] KEELRC 477 (KLR)
- Parties
- Applicant: Javas Bigambo; Respondent: The Board, Lake Victoria South Water Works Development Agency; Interested Party: Eng. George J.O Odedeh
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2021
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Conservatory Orders
- Outcome
- Application allowed. Conservatory order granted.
- Judges
- CN Baari
- Legal Topics
- Public Service Recruitment, Fair Administrative Action, Conservatory Orders, Judicial Review, Appointment Procedures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Javas Bigambo
Applicant
The Board, Lake Victoria South Water Works Development Agency
Respondent
Eng. George J.O Odedeh
Interested Party
Procedural Posture
Constitutional Petition / Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the Respondent's actions in re-advertising and nullifying the concluded recruitment process for Chief Executive Officer violated constitutional and statutory provisions.
- 2 Whether the Applicant is entitled to conservatory orders restraining the Respondent from proceeding with a fresh recruitment pending determination of the petition.
Ratio Decidendi
The court found that the Respondent, having been served and failing to oppose the application, left the Applicant's assertions uncontroverted. The Applicant demonstrated that the Respondent had disregarded a concluded recruitment process and prior court orders by re-advertising the position of Chief Executive Officer, contrary to constitutional and statutory requirements. The court held that it was necessary to preserve the status quo and prevent further recruitment steps pending the determination of the petition to safeguard the integrity of public service recruitment and uphold the rule of law. Accordingly, the court granted the conservatory order as sought by the Applicant.
Court Disposition
Application allowed. Conservatory order granted.
Orders
- A conservatory order is hereby issued prohibiting the Respondent, their employees, servants and/or agents or anyone acting on their behalf from shortlisting, interviewing, appointing or taking any further step towards filling the position of the Chief Executive Officer of Lake Victoria South Water Works Development...
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 5 OF 2021
JAVAS BIGAMBO...............................................................................................CLAIMANT
VERSUS
THE BOARD, LAKE VICTORIA SOUTH
WATER WORKS DEVELOPMENT AGENCY..........................................RESPONDENT
ENG. GEROGE J.O ODEDEH........................................................INTERESTED PARTY
RULING
1. Before court is a notice of Motion Application dated 8th July, 2021, expressed to be brought pursuant to Articles 20, 22, 50(1), 23(3), 159(2)(d), 165, and 258 of the Constitution and Section 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rule, 2013.
2. The Applicant seeks the following orders:
i. Spent
ii. Spent
iii. THAT the Honourable court be pleased to issue a conservatory order, prohibiting the Respondent herein, their employees, servants and/or agents or anyone acting on their behalf from shortlisting, interviewing, appointing or taking any further step towards filling the position of the Chief Executive Officer of Lake Victoria South Water Works Development Agency pending the hearing and determination of this petition.
iv. THAT the Honourable court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders and /or favour the cause of justice.
v. THAT the costs of this application be provided for.
3. The Applicant urged the application on the 2nd November, 2021. The application is not opposed and the Respondent did not appear in court on the hearing date despite service.
4. The Applicant relied on the grounds on the face of the application and the Supporting affidavit of the Applicant herein and urged that the application be allowed as prayed as the same is not opposed.
5. The crux of the application is that the Respondent advertised and shortlisted candidates for the position of Chief Executive Officer of the Lake Victoria Water Works Development Agency and further conducted interviews for the position on 7th and 8th October, 2020 where the selection panel interviewed eleven candidates including the interested party.
6. The Applicant states that following the interviews, the selection panel identified three top candidates being Eng. George J.O Odede the interested Party with 88%, Eng. Boaz Okoth Akello with 73% and Ms. Sheila Yieke with 71%.
7. The Applicant further states that the Cabinet Secretary, Ministry of Water and Sanitation in collusion with the Respondent tried to circumvent the outcome of the recruitment process by appointing Eng. Boaz Okoth Akello, who was ranked 2nd by the selection panel, which decision was declared ultra vires the water Act and the State Corporations Act and therefore invalidated the appointment. The Applicant states that the Respondent was ordered to appoint the Chief Executive Officer without interference from the Cabinet Secretary.
8. The Applicant avers that in total disregard of the orders of the court issued in the said judgment, the Respondent on 2nd July, 2021 placed a fresh advertisement in the news paper for a vacancy for the same position thereby unfairly and without any cause, notice or reason nullifying the already concluded recruitment exercise despite use of public resources in the exercise and a suitable candidate found to fill the position.
9. The Applicant avers that the actions of the Respondent aforementioned, undermine Articles 10, 47, 73, 232 and 201 (d) of the Constitution on National Values and Principles of Public Service, the Right to Fair Administrative Action and the principles underpinning accountability for administrative action and affording adequate and equal opportunities for appointment in the public service.
10. The Applicant avers that it is in the interest of justice that the Respondent be compelled to fill the position of Chief Executive Officer of the Respondent, with a candidate from the already completed open and competitive process.
Determination
11. The Respondent herein was served with the instant application and a return of service is on record. They opted not to respond to the application. The application is thus unopposed. For this reason, the application is allowed in the following terms:
i. THAT a conservatory order is hereby issued prohibiting the Respondent, their employees, servants and/or agents or anyone acting on their behalf from shortlisting, interviewing, appointing or taking any further step towards filling the position of the Chief Executive Officer of Lake Victoria South Water Works Development Agency pending the hearing and determination of this petition.
ii. Costs shall be in the cause.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 18TH DAY OF NOVEMBER, 2021.
CHRISTINE N. BAARI
JUDGE
Appearance:
Mr. Baraza h/b for Mr. Macharia for the Petitioner/Applicant
N/A for the Respondent
Christine Omollo – C/A