[2024] KEELRC 1636 (KLR)

Omao v County Government of Nyamira & 5 others; Oyugi & 5 others (Interested Parties) (Petition E042 of 2022) [2024] KEELRC 1636 (KLR) (27 June 2024) (Judgment)

Neutral citation: [2024] KEELRC 1636 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition E042 of 2022

CN Baari, J

June 27, 2024

Between

Vincent Mariita Omao

Petitioner

and

County Government Of Nyamira

1st Respondent

Governor, Nyamira County

2nd Respondent

County Secretary, Nyamira County

3rd Respondent

Clerk, County Assembly of Nyamira

4th Respondent

Speaker, County Assembly of Nyamira

5th Respondent

Nyamira County Public Service Board

6th Respondent

and

Dominic Barare Oyugi

Interested Party

Mwencha Nyasimi

Interested Party

Dennis Ongigo Onduko

Interested Party

Moenga Momanyi

Interested Party

Lucas Odida

Interested Party

Azenath Kenyanya

Interested Party

Judgment

1. Before court is an amended petition dated 1st November, 2022 and filed on even date, wherein, the Petitioner seeks the following reliefs:i.A permanent Order of injunction be issued restraining the vetting committee to be appointed by the 4th and 5th Respondents from vetting the interested parties herein as scheduled pursuant to the notice contained in the Standard Newspaper dated 29th October 2022. ii.A permanent Order of Injunction be issued restraining the 2nd Respondent from appointing the interested parties to the positions of County Chief Officers Finance and Accounting services; Economic Planning, Resource Mobilization and ICT; Crop Production; Primary Health Care; Medical Services; and Livestock Production.iii.An order directing the 2nd,3rd and 6th Respondents to cancel the additional departments and maintain the previous 10 departments.iv.The court be pleased to issue an order of judicial review of certiorari to remove into the honourable court for quashing the Nomination List and any subsequent decision to be made by the Respondents touching on and/or relating the appointment of the interested parties.v.In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to direct the 4th and 5th Respondents to issue a fresh notice that is in strict compliance with the Constitution and the relevant statutory Laws, particularly Sections 7(4) and (5) of the Public Appointments (County Assemblies Approval) Act, 2017. vi.A declaration that the advertisement inviting applications for the positions and the subsequent appointment of the Interested Parties herein to the positions of County Chief Officers, Finance and Accounting Services; Economic Planning, Resource Mobilization and ICT; Crop Production; Primary Health Care; Medical Services; and Livestock Production is unconstitutional and illegal to the extent that the same was abolished and created illegally and irregularly.vii.A declaration that the actions of the Respondents in abolishing and creating departments violates Sections 59, 60, 61 of the County Government Act, 2012, the Constitution under Article 1, 2, 10, 27 (4) and 28 of the Constitution, 2010 and therefore null and void.viii.The court be pleased to issue an order of judicial review of certiorari to remove into the honourable court for quashing the gazette notice published on the 28th May 2020 and any subsequent decision to be made by the Respondents herein touching on and/ or relating the appointment of the interested party herein.

The Petition 2. The petition is premised on the grounds THAT:i.The 1st Respondent has submitted a List of Thirteen (13) County Chief Officers (hereinafter referred to as the nominees) to the County Assembly of Nyamira through the 2nd Respondent for vetting and approval.ii.The 1st Respondent has created additional departments without the same being created by the County Public Service Board.iii.The 2nd Respondent has extended the tenure of the 1st Interested Party, Dominic Barare Oyugi who never applied for the position he has been nominated to, never attended the concluded interviews.iv.It is worthy to note that if his former department was abolished, the 1st Interested Party was required by law to apply for the new post.v.Vide Notice issued on the 1st September, 2022, the 1st Respondent through the office of the 6th Respondent declared the office of the County Chief Officers, departments vacant and invited applications from the members of the public to submit applications for the said post by the 16th September, 2022. vi.In the said notice, the 1st Respondent has proceeded to abolish, split some departments and create additional departments in violation of the County Government Act, 2012 without the laid down procedures and approval of the County Assembly.vii.The Respondents' actions amount to an affront to Articles 10 and 232(1) of the Constitution and go against the principles of good governance, integrity, transparency and accountability.viii.That consequently, the actions of the 4th and 5th Respondents constitute breach of the fundamental rights and freedoms enshrined in the Constitution, more particularly the right to public participation.ix.Vide notices published in the Standard and Daily Nation Newspapers on Saturday, 29th October, 2022, the 4th Respondent scheduled sittings to run from 7th November, 2022 to 11th November,2022, for vetting and approval of the Interested Parties herein, for the positions of County Chief Officers.x.That the advertisement and scheduled vetting, approval and appointment of the said Nominees, is therefore un-procedural, irregular and illegal.xi.The 4th Respondent is likely to convene sittings for vetting and subsequent approval of the appointment of the Interested Parties to the positions of County Chief Officers for Finance and Accounting Services; Economic Planning, Resource Mobilization and ICT; Crop Production; Primary Health Care Medical Services, and Livestock Production.xii.By adding extra positions/departments which are non-existent and others not in the organizational structure/organogram is not only discriminatory, mischievous, informed by ulterior motives but also meant to “create vacancies" for political expedience to award cronies after the electioneering period.xiii.The additional departments and/or positions have been created to advance narrow political interests of the 2nd Respondent to appease cronies after his re-election, but not to enhance service delivery.xiv.The departments as created are not based on any comprehensive plans, need analysis, strategic plans and annual recruitment plans or public participation.xv.The impugned creation of departments if allowed to proceed, is a demonstration of failure to plan and contain the wage bill which continues to be an issue affecting development which in the Petitioner’s view, is a gross violation of the Constitution, Public Finance Management Act 2012. xvi.In the event the said sitting is convened by the 4th and 5th Respondents as scheduled, the members of the public, more particularly the residents of the County Government of Nyamira will not get an opportunity to articulate their issues and views to be, considered during the vetting of the Interested Parties by the Committee to be appointed by the 4th Respondent.xvii.The Petitioner herein, together with thousands of the residents of the County Government of Nyamira have a legitimate right to be involved in the process of the appointment of the officers of the 1st Respondent, more particularly County Chief Officers.xviii.The Respondents have opted to carry out the process of vetting, approval and Officers, Finance and Accounting Services; Economic Planning, Resource Mobilization Production in an opaque, secretive and exclusive manner thus subjecting the rights of the residents of the County Government of Nyamira into ridicule.xix.The protection of Public funds is the responsibility of every state organ and/or persons and hence the Petitioner/Applicant has a Constitutional duty to superintend compliance with the Constitution, 2010. That Article 207 of the Constitution, 2010, provides the manner in which Public funds may be expended.xx.Unless this Honourable Court declares the nomination, vetting and approval of the Interested Parties herein illegal and therefore contrary to the Constitution, the Respondents are bound to trample upon the rights of thousands of the residents of Nyamira County and put the Constitution in discord.

The Respondents’ Case 3. The common thread across the affidavits was THAT:i.The Petition in its entirety is misconceived, misguided, bad in law and should be dismissed with costs to the Respondents and the Interested Parties, on the premise that it is made in bad faith, misrepresents the true position, and does not raise any constitutional issues worthy of determination by this Honourable Court.ii.The entire Petition does not, with specificity, point to the actual Constitutional provisions and rights that has been violated or a constitutional wrong that has been committed by either the Respondents or the Interested Parties and as such, ought to be dismissed forthwith.iii.The advertisement and nominations were conducted in a free and fair manner in adherence to the Constitution of Kenya and all the relevant laws.iv.The 1st Respondent has never abolished or created any new departments as alleged by the Petitioner.v.On 30. 08. 2022, the Public Service Board received a Cabinet circular/resolution dated 30. 08. 2022 from the County Secretary indicating that the County Executive Committee members for the departments of Finance, ICT and economic planning, Agriculture, Livestock and Fisheries and Health Services had presented cabinet memos to the County Assembly seeking for the split of their departments into two pursuant to Section 59 of the County Government Act.vi.The Public Service Board convened a meeting on 31. 08. 2022, with one of the agendas being the cabinet request to split the aforementioned departments.vii.The Public Service Board approved the splitting of the requested departments in accordance with the provisions of law.viii.The approvals were made in the interest of the public as there was need for effective service delivery in order to meet the high expectation of the residents of County Government of Nyamira.ix.The 2nd Respondent has not extended the tenure of the 1st Interested Party as his contract as the chief officer, Finance, ICT and economic planning which commenced on 01. 07. 2020 was still valid until 30. 06. 2023. x.There was no need for the 1st Interested Party to apply for the positions advertised as he had been previously appointed through a competitive process and his employment contract was still in force.xi.The department of Finance, ICT and economic planning was split into Finance and Accounting Services and Economic Planning, Resource Mobilization and ICT whereby the 1st Interested Party was re-assigned to be the chief Officer, Finance and Accounting Services.xii.The 2nd Respondent has the powers to appoint and re-assign chief officers under Section 45 (5) of the County Government Act; which power was legally exercised by re-assigning the 1st Interested party as the chief Officer, Finance and Accounting Services.xiii.Subjecting the 1st Interested Party to fresh recruitment process of a chief officer as alleged by the Petitioner when his contract of service is still in force, would amount to violation of his Constitutional and employment rights.xiv.There was inclusion of the public, comprehensive planning, need analysis, strategic planning as the corrective changes were made to the respective departmental organograms and the budget for the new departments availed before their creation.xv.The 1st, 2, 3rd and 6th Respondent discharged their duties with strict adherence to the Constitution and all the relevant laws and procedure involving the public as demonstrated herein, and therefore the advertisement, vetting and approval of the nominees is procedural, regular and legal.xvi.The public was notified of the vetting and approval hearings through the Standard newspaper of 29. 10. 2022, seven (7) days prior to the vetting and approval hearings.xvii.The public was notified to present their views on the shortlisted candidate within seven days and also invited to the vetting and approval hearing on the scheduled dated via the aforementioned newspaper advertisement as required under Sections 7(4) and 7(5) of the Public Appointment (County Assemblies Approval) Act No. 5 of 2017. xviii.The whole procedure of nominating, vetting and approval of the chief officers and the Interested Parties herein was done in compliance with the laid down procedure, the law and the principles of good governance, integrity, transparency and accountability.xix.The laid down procedure was followed in splitting the departments and appointment of the chief officers in accordance to the relevant laws in an open manner, and that the process was not prejudicial and opaque as alleged by the Petitioner.

4. On their part, the 4th and 5th Respondents via their replying affidavit sworn by Duke Onyari state THAT:i.Pursuant to Section 45 (1) of the County, Government Act the 2nd Respondent vide a letter dated 26th October 2022 forwarded to the Speaker of the County Assembly of Nyamira, the names of twelve nominees for vetting and approval as Chief Officers.ii.In accordance with Section 6 (2) and 7 (4) of the Public Appointments (County Assemblies Approval) Act 2017, he notified the nominees, the interested parties and the General Public of the time and venue of the vetting exercise through an advertisement in the Newspapers on 29th October 2022. iii.The newspaper advertisement mentioned stated thus:“Pursuant to Section 45(1) (a) (b) of the County Governments Act, 2012, Section 7(1),(2),(3),(4),(5) of the Public Appointments (County Assemblies Approval) Act, 2017, Standing Order number 196 (6) of the County Assembly of Nyamira Standing Orders, it is notified to the under listed nominees to the position of County Chief Officers and the general public that vetting shall be conducted on 9th November, and 11th November 2022 at the County Assembly of Nyamira boardroom as scheduled hereunder ..”iv.The notice went on to state as follows:“The candidates are required to collect the vetting questionnaire from the Office of the Clerk of the County Assembly or download them from the County Assembly Website. “Members of the Public and interested groups are hereby notified to present their views and memoranda on or before 7th November,2022 at 9:00 A.M. to the Ag. Clerk County Assembly of Nyamira.”v.On 9th November 2022, the Committee on Agriculture, Livestock and Fisheries Development vetted the 2nd and 4th interested parties and its report dated 15th November 2022 recommended the approval of the said persons to the positions of County Chief Officer for Crop Production and County Chief Officer for Livestock and Fisheries respectively, in the Department of Agriculture, livestock and Fisheries Development.vi.On 9th November 2022, the Committee on Finance and Economic Planning vetted the 5th Respondent and recommended her for approval to the position of Chief Officer in the department of Economic planning, Resource mobilisation and ICT.vii.On 11th November 2022, the Committee on Health Services vetted the 3rd and 6th Interested Parties and recommended their approval to the positions of Chief Officer Primary Health Care and Medical Services respectively.viii.Pursuant to the provisions of the Constitution, County, Governments Act 2012, Section 11 (1) of the Public Appointments (County, Assemblies Approval) Act, 2017 and the County, Assembly of Nyamira Standing orders, the County Assembly of Nyamira on its sittings held on 15th and 22nd November 2022 at 2:30 pm and deliberated and resolved that the 2nd,3rd ,4th 5th and 6th Interested parties are approved for appointment to their respective positions.ix.From the foregoing, it is clear that the 4th and 5th Respondent followed the due process as provided for in the law, in vetting and approving the Interested parties herein, and that the Petitioner is being economical with the truth by claiming the contrary.

5. Contemporaneously with the submissions, the 4th and 5th Respondents filed a Preliminary Objection seeking to strike out the petition for being contrary to the doctrine of exhaustion, and with the concurrence of all parties, it was agreed that the P.O be canvassed together with the Petition.

The Petitioner’s Submissions 6. In opposition to the preliminary objection the Petitioner affirms the jurisdiction of this court. He emphasises that this court is clothed with power to determine breaches of fundamental rights arising out of employment and labour relations. He placed reliance in the cases of United States International University (USIU) V.Attorney General(2012)eKLR, Prof. Daniel N. Mugendi V Kenyatta University and 3others, Civil Appeal No. 6 of 2012, Geoffrey Makana Asanyo v Nakuru Water And Sanitation Services Company And 6 Others, Judicial Service Commission v Gladys Boss Shollei & Another (2014) eKLR; Geoffrey Mworia v Water Resources Management Authority and 2 others (2015)eKLR and Karisa Chengo and 2 others - versus Republic (2015) eKLR to support his assertion.

7. The Petitioner avows that it is the constitutionality of the process of advertisement, vetting, approval, and appointment of the interested parties that is under scrutiny. It is his submission that the Public Service Commission cannot grant the orders in the petition as they cannot be remedied by Section 77 of the County Governments Act. He cites Justice Byram Ongaya in Abdikadir Suleiman v County Government of Isiolo & another (2015) eKLR to buttress this position.

8. The Petitioner draws this court’s attention to Article 165 (3) (d) on its jurisdiction to hear questions of interpretation of the Constitution and Article 10 on observance of national values in making public policy decisions.

9. The Petitioner further submits that the entire process was being carried out without sufficient budgetary allocation and had the danger of ballooning the wage bill above the 35% stipulated in Section 25 (1), (a) and (b) of the Public Finance Management Act.

1ST ,2ND ,3RD AND 6TH Respondents’ AND 1ST -6TH Interested Parties’ Submissions 10. The Respondents submit that this court lacks jurisdiction based on the provisions of Article 234 (2) (i) of the Constitution, Section 77 (1) and (2) of the County Governments Act, and Sections 85 and 87 (2) of the Public Service Commission Act.

11. They reiterate that the issues raised in the petition are with respect to decisions made by the County Public Service Board, hence they fall under the purview of Section 77 of the County Governments Act. For this reason, they assert that the Petitioner ought to have appealed to the Public Service Commission within 90 days as stipulated under Section 77.

12. The 1st ,2nd ,3rd and 6th Respondents and the Interested Parties in support of this contention, cite the case of Secretary County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR, where the courts placed emphasis on exhaustion of statutorily avenues of grievance and dispute resolution before approaching court.

13. Additionally, they submit that the petition does not meet the constitutional threshold set out in the case of Anarita Karimi Njeru v Republic for the reason that it has been pleaded without reasonable precision.

14. They aver that save for citing omnibus provisions of the Constitution, the Petitioner has not cited the specific Articles allegedly infringed upon and the manner in which they were infringed by the 1st ,2nd ,3rd and 6th Respondents and the Interested Parties.

15. In reiterating the propriety of the Interested Parties’ appointments, they draw this court’s attention to Section 59 (1) (a) and (b) of the County Governments Act, on the responsibility of the Public Service Board to; establish and abolish offices in the County Public Service and, to appoint persons to act in the offices of the County Public Service.

16. The 1st ,2nd ,3rd and 6th Respondents and the Interested Parties equally cite Section 60 of the County Governments Act on the power and conditions necessary for establishment of offices within the County Public Service.

17. In conclusion they urge the court to dismiss the Petition with costs.

4th and 5th Respondent’s Submissions 18. In their submissions the 4th and 5th Respondents by and large reiterate the 1st ,2nd ,3rd and 6th Respondents and the Interested Parties submissions regarding the court’s lack of jurisdiction, and the lack of specificity in the constitutional provisions infringed.

Analysis and Determination 19. I have appraised the petition, the replies and the submissions by all the parties, and the following issues present for determination:i.The issue of jurisdiction of the court raised under the Respondents’ preliminary objection.ii.Whether the Petition meets the threshold for a Constitutional petition.iii.Whether the Petitioner is deserving of the remedies sought.

Whether the court has jurisdiction to entertain the petition 20. The issue of jurisdiction was a major point of contention in this petition, including being the subject of a preliminary objection by the Respondents. It is the submission of the Respondents and the Interested Parties that the petition offends the doctrine of exhaustion.

21. It is their assertion that the petition as filed, offends Article 234 (2) (i) of the Constitution, Section 77 (1) and (2) of the County Governments Act, and Sections 85 and 87 (2) of the Public Service Commission Act.

22. On his part, the Petitioner holds the view that this court has jurisdiction to entertain constitutional matters arising out of employment and labour relations.

23. The petition herein, challenges the recruitment, vetting and appointment of the Interested parties herein and the Respondents’ abolition and establishment of offices in the County Government of Nyamira.

24. It is the Petitioner’s position that the recruitments, appointments and establishment of offices subject of this petition, violates the Constitution and the County Government Act.

25. Article 234 (2) (i) of the Constitution provides as follows: -(2)The Commission shall—(i)hear and determine appeals in respect of county governments’ public service;

26. Further, Section 77(1) and (2) of the County Government Act provides:“(1)Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the “Commission”) against the decision.(2)The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of—a.recruitment, selection, appointment and qualifications attached to any office;b.remuneration and terms and conditions of service;c.disciplinary control;d.national values and principles of governance, under Article 10, and values and principles of public service under Article 232 of the Constitution;e.retirement and other removal from service;f.pension benefits, gratuity and any other terminal benefits; org.any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard.”

26. Similarly, Sections 85 and 87(2) of the Public Service Commission Act provides: -“85The Commission shall, in order to discharge its mandate under Article 234 (2) (i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of —a.recruitment, selection, appointment and qualifications attached to any office;b.remuneration and terms and conditions of service;c.…….d.national values and principles of governance, under Article 10 and values and principles of public service under Article 232 of the Constitution;e.……f.……g.any other decision the Commission considers to fall within its constitutional competence to hear and determine an appeal in that regard.

87 (2)A person shall not file any legal proceedings in any Court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals from county government public service unless the procedure provided for under this Part has been exhausted.”

27. By the foregoing provisions, the question that arises, is whether the dispute subject of the petition herein, falls under the mandate of the PSC.

28. It is now settled that where there exists other sufficient and adequate avenues to resolve a dispute, a party ought to pursue that avenue and not invoke the court process, if the dispute is one that can be dealt with in the alternative forum. (See Speaker of the National Assembly v James Njenga Karume [1992] eKLR).

29. In the case of NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), the Court of Appeal had occasion to consider the doctrine of exhaustion where it held thus: -“The principle running through these cases is where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it…’’.

30. Regarding exceptions to the exhaustion doctrine, the same court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (interested parties) (2020)e KLR enjoins the court to consider the peculiar facts and circumstances of each case. The court observed as follows: -“As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised”

31. It is evident from the circumstances of this case that the Petitioner is impugning the process of recruitment and appointment of the Interested Parties within the County Public Service and the establishment and abolition of offices in the same county.

32. The matters subject of the petition in my view, places it within the purview of Section 77 of the County Governments Act and Section 85 of the Public Service Commission Act. A plain reading of the Sections shows that Public Service Commission is clothed with jurisdiction to hear appeals in the first instance, relating to engagement and recruitment of ‘any’ person in the County Government.

33. Additionally, both Section 77 (2) (d) of the County Governments Act and Section 85 (d) of the Public Service Commission Act, empower the Public Service Commission to deal with issues of infringement of national values under Article 10, and infringement of values and principles of public service under Article 232.

34. The exhaustion principle within the context of the county public service was the subject of examination by the Court of Appeal in Secretary, County Public Service Board & Ar v Hulbhai Gedi Abdille (2017) eKLR, where it was held:“There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance……. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is, in our view, without basis because section 77 has placed no fetter to the jurisdiction of the Public Service Commission.”

35. The Petitioner has not at all indicted having filed an appeal before the PSC in relation to the issues herein. In the premise, I find and hold that the petition offends the doctrine of exhaustion and is for striking out.

36. The other issues subject herein, fall by the way side.

37. The petition is thus struck out with no orders as to costs.

38. It is ordered.

DATED, SIGNED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 27TH DAY OF JUNE, 2024. C. N. BAARIJUDGEAppearance:Mr. Omandi h/b for Mr. Mainga for the PetitionerMs. Mukulo present for the 1st, 2nd, 3rd & 6th Respondents & all I. PartiesMr. Gituma h/b for Mr. Makori for the 4th & 5th RespondentsAnjeline & Debra - C/As