[2023] KEELRC 2456 (KLR)

Source-derived case information.

Citation: [2023] KEELRC 2456 (KLR)
Parties: Applicant: Benson Odongo Ouma; Applicant: Sophy Okech; Applicant: Peter Onyango Ochola; Applicant: Lucy Atieno Ogwela; Applicant: George Owiti Osodo; Applicant: Mark Odunga; Respondent: Principal Secretary, Ministry Of Interior & Coordination Of National Government; Respondent: Regional Commissioner, Nyanza Region County Commissioner, Homa Bay County; Respondent: Deputy County Commissioner, Mbita Sub-County; Respondent: Public Service Commission; Respondent: Attorney General
Court: Employment and Labour Relations Court
Court Station: Employment and Labour Relations Court at Kisumu
Jurisdiction: Kenya
Case Number: Petition E021 of 2023
Procedural Posture: Constitutional Petition / Judgment
Outcome: Petition allowed by consent and concession; recruitment exercise declared unconstitutional and void; fresh recruitment ordered; respondents to pay costs on half scale.
Judges: S Radido
Legal Topics: Public Service Recruitment, Fair Administrative Action, Constitutional Rights, Unlawful Appointments
Source Language: en

Constitutional Law Employment and Labour Public Service Recruitment Fair Administrative Action Constitutional Rights Unlawful Appointments

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Parties

Benson Odongo Ouma

Applicant

Sophy Okech

Applicant

Peter Onyango Ochola

Applicant

Lucy Atieno Ogwela

Applicant

George Owiti Osodo

Applicant

Mark Odunga

Applicant

Principal Secretary, Ministry Of Interior & Coordination Of National Government

Respondent

Regional Commissioner, Nyanza Region County Commissioner, Homa Bay County

Respondent

Deputy County Commissioner, Mbita Sub-County

Respondent

Public Service Commission

Respondent

Attorney General

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

1 Whether the recruitment and appointment process for Assistant Chiefs in the specified sub-locations violated constitutional provisions and statutory requirements.
2 Whether the process was conducted in accordance with the principles of fair administrative action and public service values.
3 Whether the recruitment exercise was unconstitutional, unlawful, null and void.

Ratio Decidendi

The court found that the respondents, by recalling the recruitment exercise and initiating a fresh process, effectively admitted to the petitioners' claims that the recruitment and appointment of Assistant Chiefs in the specified sub-locations was unconstitutional and unlawful. The court held that the process violated constitutional provisions on fairness, transparency, and merit-based public service appointments. Consequently, the court declared the recruitment exercise null and void and ordered a fresh process in accordance with the Constitution and applicable statutes. The respondents were condemned to pay costs on half scale due to their concession on the day set for judgment.

Court Disposition

Petition allowed by consent and concession; recruitment exercise declared unconstitutional and void; fresh recruitment ordered; respondents to pay costs on half scale.

Orders

A declaration is hereby issued that the recruitment exercise and/or interviews conducted by the Respondents regarding Assistant Chiefs in Nyamambi East, Nyamambi West, and Waware North sub-locations was unconstitutional, unlawful, null and void.
Fresh recruitment to be conducted in accordance with the Constitution and applicable statutes.

Full Case Text

Judgment text and source record

44 paragraphs

Ouma & 5 others v Principal Secretary, Ministry of Interior & Coordination of National Government & 4 others (Petition E021 of 2023) [2023] KEELRC 2456 (KLR) (11 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2456 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition E021 of 2023

S Radido, J

October 11, 2023

IN THE MATTER OF THE ENFORCEMENT OF ARTICLES 2, 3, 10, 11, 19, 23, 27, 35, 41 AND 47 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 73, 74, 75, 76, 78, 79 AND 232 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED VIOLATION AND INFRINGEMENT OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE EMPLOYMENT ACT NO. 11 OF 2007 AND IN THE MATTER OF THE RECRUITMENT/APPOINTMENT OF ASSISTANT CHIEFS IN NYAMAMBI EAST SUB-LOCATION OF LAMBWE EAST LOCATION, NYAMAMBI WEST SUB-LOCATION OF LAMBWE EAST LOCATION, AND WAWARE NORTH SUB-LOCATION OF RUSINGA EAST LOCATION

Between

Benson Odongo Ouma

1st Petitioner

Sophy Okech

2nd Petitioner

Peter Onyango Ochola

3rd Petitioner

Lucy Atieno Ogwela

4th Petitioner

George Owiti Osodo

5th Petitioner

Mark Odunga

6th Petitioner

and

Principal Secretary, Ministry Of Interior & Coordination Of National Government

1st Respondent

Regional Commissioner, Nyanza Region County Commissioner, Homa Bay County

2nd Respondent

Deputy County Commissioner, Mbita Sub-County

3rd Respondent

Public Service Commission

4th Respondent

Attorney General

5th Respondent

Judgment

1. The 6 Petitioners sued the 6 Respondents contending that the recruitment/appointment process for Assistant Chiefs for Nyamambi East, Nyamambi West, and Waware North sub-locations were in violation of Articles 10(2), 27(1), 35, 47(1) and (2) and 73 of the Constitution.

2. Filed together with the Petition was a Motion seeking interim interdict which the Court granted on 2 August 2023.

3. The Court issued directions on the Motion and Petition on 10 August 2023 and when the parties appeared for judgment on 4 October 2023, the Public Service Commission informed the Court that the Respondents had decided to recall the exercise and start it afresh.

4. The Court directed the parties to sign a consent in terms of the indications by the Public Service Commission, but regrettably, the parties could not agree on costs, thus handicapping the filing of the consent.

5. The Court, therefore, opted to proceed and prepare this judgment.

6. The Principal Secretary wrote to the Regional Commissioner on 26 September 2023, directing him to commence a fresh recruitment process for Assistant Chiefs for Nyamambi East, Nyamambi West, and Waware North sub-locations.

7. A copy of the letter was introduced into the record by the Public Service Commission on 4 October 2023.

8. The effect of the letter is that the Respondents have admitted to or conceded to the Petition.

9. On the basis of the admission/concession, the Court orders:i.A declaration is hereby issued that the recruitment exercise and/or interviews conducted by the Respondents and/or their servants, agents, and/or employees regarding Assistant Chiefs in Nyamambi East sub-location of Lambwe East Location, Nyamambi West sub-location of Lambwe East Location and Waware North sub-location of Rusinga East Location was unconstitutional, unlawful, null and void.ii.Fresh recruitment be conducted in accordance with the Constitution and applicable statutes.

10. The Respondents made a concession on the day set for judgment. They are condemned to pay costs on half scale.

DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 11TH DAY OF OCTOBER 2023. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Petitioners Edward Kisia & AssociatesFor 1st to 4th and 6th Respondents Honourable Attorney GeneralFor 5th Respondent Wangeci Gichangi, Principal Legal CounselCourt Assistant Chrispo Aura/Everlyne

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