Automated Summary
Key Facts
The petitioners (Peris Saina and Dennis Kiplimo Sirma) challenged the constitutionality of Uasin Gishu County's recruitment manual permitting internal job advertisements. The court dismissed the respondents' preliminary objection that petitioners should have first exhausted internal appeal processes, ruling they lacked standing as public officers. The court rejected conservatory orders due to insufficient proportionate magnitude but advised expedited proceedings to resolve the constitutional legality of internal recruitment policies. The respondents argued internal recruitment promotes existing staff and avoids external hiring, while petitioners claimed it was discriminatory and excluded qualified public applicants.
Issues
- The court evaluated the criteria for conservatory orders and found that the proportionate magnitude and priority of the case did not justify granting such an order to halt the internal recruitment process. The application was rejected, though parties were urged to expedite the hearing.
- The petitioners challenged the legality and constitutionality of the county government's recruitment manual, which allows internal job advertisements and excludes the general public from the process. The court rejected a conservatory order to halt the policy but advised fast-tracking the petition to resolve its constitutional validity.
- The court dismissed the respondent's preliminary objection, ruling that the petitioners, not being public officers, could not use the appeal process and had to seek judicial review directly. The objection was based on alleged failure to exhaust internal appeals under the County Government Act and Public Service Commission's Act.
Holdings
- The court dismissed the preliminary objection that the petitioners had not exhausted the appeal process, ruling that the petitioners, not being public officers, could only challenge the county public service board's decisions in court.
- The appeal process under the Public Service Commission Act is limited to public servants already in a relationship with the commission, and not open to members of the public who are not public officers.
- The constitutionality of the county government's recruitment manual permitting internal job advertisements was identified as the core issue requiring expedited hearing, with potential to nullify appointments if found unlawful.
- Conservatory orders were rejected as the proportionate magnitude and public interest did not warrant interim relief, though parties were advised to expedite proceedings to resolve the constitutional challenge.
Remedies
The court dismissed the application for conservatory orders and advised the parties to fast-track the petition to determine the constitutionality of the internal recruitment manual.
Legal Principles
The court applied judicial review principles to assess the constitutionality of internal recruitment policies, emphasizing that petitioners must exhaust administrative appeals before judicial intervention. The decision highlighted the need for proportionality in granting conservatory orders and clarified that the Public Service Commission's appeal process is limited to public officers.
Precedent Name
Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
Cited Statute
- Public Service Commission (County Government Public Appeals Procedures) Regulations, 2016
- County Government Act
- Public Service Commission Act
- Constitution of Kenya
Judge Name
Jorum Nelson Abuodha
Passage Text
- The petitioners before me are not public officers hence the only forum they could use to question the decisions of the county public service board which affect the public is by invoking the jurisdiction of the court. The preliminary objection is therefore found without merit and is hereby dismissed.
- The petition in essence challenges the constitutionality of the respondents recruitment, selection and appointment manual which apparently permits internal recruitment. Should the petitioners become successful, the appointments can be nullified by the court. If they became unsuccessful, the respondents operations would not have been slowed down or impaired due to shortage of staff in key areas that they sought to fill.
- The argument by counsel may sound novel and sound however, the court does not think it is correct that any aggrieved or affected person can invoke the appeal process provided for under Public Service Commission Act. The act and County Government Act governs relationship between the public service commission and public servants.