Employment and Labour Relations Court at Nairobi
Anthony v Communications Authority of Kenya & 3 others
Anthony v Communications Authority of Kenya & 3 others (Petition E161 of 2021)  KEELRC 1117 (KLR) (25 January 2022) (Judgment)
The Public Service Commission has the mandate to regulate the human resource of state corporations.
The Communications Authority of Kenya (CAK) (1st respondent) advertised for two vacant positions in the print media on October 1, 2021 with respect to director frequency spectrum management and director competition management and applicants were directed to submit applications by October 26, 2021. On September 28, 2021 the CAK issued an internal advertisement inviting applications for 43 vacant positions. Applicants were to submit applications by October 19, 2021. The advertisements were issued pursuant to the new human resource policies and guidelines prepared and prescribed by the CAK for the State Corporations Advisory Committee (SCAC) (2nd respondent). The human resource manual required that all serving and prospective employees of the CAK from the position of assistant manager and above must have a minimum academic qualification of a masters degree and that the persons must have undertaken supervisory or management courses lasting not less than 2 to 4 weeks respectively from a recognised institution. The CAK had scheduled trainings for the identified staff to undertake supervisory and senior management courses to be conducted at the Kenya School of Government during the year 2021/2022.
The petition was that the scheduled staff trainings were discriminatory and prejudicial to members of staff who would have undergone the training on supervisory and senior management courses before the close of the advertisements for vacant positions. The petitioner stated that the scheduled training gave an unfair advantage to the staff whose trainings had been timed to take place before the deadline for the submissions of the applications.
The petitioner also sought a declaration that section 31 of the Public Service Commission (PSC) Act (that provided that the PSC may delegate its duties) was in conflict with articles 232, 233, 234, 235 and 236 of the Constitution (in respect of the public service and Public Service Commission).
- Whether positions held in state corporations were in the public service and were subject to regulation by the State Corporations Advisory Committee or by the Public Service Commission.
- Whether section 31 of the Public Service Commission (PSC) Act (that provided that the PSC may delegate its duties) was in conflict with articles 232, 233, 234, 235 and 236 (in respect of the public service and Public Service Commission) of the Constitution.
- Who should regulate the human resource of state corporations?
- What did the courts consider in making a determination as to whether an individual was a public officer?
- Whether an employee of a parastatal/state corporation was a public officer within the meaning of article 260 of the Constitution.
- Whether consent filed in a different suit could apply in perpetuity to regulate the employment of employees of a state corporation.
Relevant provisions of the law
Public Service Commission Act, Act No. 10 of 2017
31. Delegation of powers
(1) The Commission may, where appropriate and in writing, delegate any power or assign a duty conferred to it under the Constitution or this Act to its members, an officer, body or authority in the public service.
(2) A delegation or assignment under subsection (1) shall not prevent the Commission from exercising the power.
(3) A delegation under this section
(a) shall be subject to any conditions that the Commission may impose;
(b) shall not divest the Commission of the responsibility concerning the exercise of the powers or the performance of the duty delegated, and
(c) may be withdrawn, and any decision made by the person to whom the delegation is made may be withdrawn or amended by the Commission.
(4) The Commission may, at any time, institute an audit, investigation, inquiry or visit to determine whether the delegated powers are properly exercised by the authorized officer.
(5) Where the audit, investigation, inquiry or visit establishes that an authorized officer has breached any condition or improperly exercised delegated powers, the Commission shall take corrective measures including revoking the delegation.
Constitution of Kenya, 2010
Articles 233, 234, 235 and 236
233. The Public Service Commission
(1) There is established the Public Service Commission.
(2) The Public Service Commission consists of a chairperson, a vice chairperson and seven other members appointed by the President with the approval of the National Assembly.
(3) Subject to clause (4), a person is not eligible for appointment as a member of the Commission if the person
(a) has, at any time within the preceding five years, held office, or stood for election as
(i) a member of Parliament or of a county assembly; or
(ii) a member of the governing body of a political party; or
(b) holds any State office;
(c) is, or has at any time been, a candidate for election as a member of Parliament or of a county assembly; or
(d) is, or has at any time been, the holder of an office in any political organisation that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a member of Parliament or of a county assembly.
(4) Clause (3)(c) and (d) cease to apply to a person after two general elections for Parliament have been held since the person ceased to be such a candidate or office holder.
(5) There shall be a secretary to the Commission.
(6) The secretary
(a) is the chief executive of the Commission; and
(b) shall be appointed by the Commission for a term of five years, and is eligible for re-appointment once.
234. Functions and powers of the Public Service Commission
(1) The functions and powers of the Commission are as set out in this Article.
(2) The Commission shall
(a) subject to this Constitution and legislation
(i) establish and abolish offices in the public service; and
(ii) appoint persons to hold or act in those offices, and to confirm appointments;
(b) exercise disciplinary control over and remove persons holding or acting in those offices;
(c) promote the values and principles referred to in Articles 10 and 232 throughout the public service;
(d) investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
(e) ensure that the public service is efficient and effective;
(f) develop human resources in the public service;
(g) review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
(h) evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service;
(i) hear and determine appeals in respect of county governments public service; and
(j) perform any other functions and exercise any other powers conferred by national legislation.
(3) Clauses (1) and (2) shall not apply to any of the following offices in the public service
(a) State offices;
(b) an office of high commissioner, ambassador or other diplomatic or consular representative of the Republic;
(c) an office or position subject to
(i) the Parliamentary Service Commission;
(ii) the Judicial Service Commission;
(iii) the Teachers Service Commission;
(iv) the National Police Service Commission; or
(d) an office in the service of a county government, except as contemplated in clause (2)(i).
(4) The Commission shall not appoint a person under clause (2) to hold or act in any office on the personal staff of the President or a retired President, except with the consent of the President or retired President.
(5) The Commission may delegate, in writing, with or without conditions, any of its functions and powers under this Article to any one or more of its members, or to any officer, body or authority in the public service.
235. Staffing of county governments
(1) A county government is responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament, for
(a) establishing and abolishing offices in its public service;
(b) appointing persons to hold or act in those offices, and confirming appointments; and
(c) exercising disciplinary control over and removing persons holding or acting in those offices.
(2) Clause (1) shall not apply to any office or position subject to the Teachers Service Commission.
236. Protection of public officers
A public officer shall not be
(a) victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or
(b) dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.
- Under Section 12(2) of the Employment and Labour Relations Court Act, 2011, the law provided for employment and labour relationships which the Employment and Labour Relations Court had jurisdiction to address. The court was given a constitutional mandate to hear and determine all employment and labour relations disputes.
- The instant petition was anchored under the provisions of various articles including articles 22, 23, and 258 of the Constitution of Kenya, 2010 (Constitution). Under those provisions, a petitioner was allowed to file a petition to vindicate the rule of law and get the unlawful conduct stopped. In doing so, the strict rule of locus standi applicable to private litigation was relaxed and a broad rule was evolved which gave standing to any member of the public acting bona fide and having sufficient interest in instituting an action for redress of a public wrong or public injury. The public good was clear.
- A determination on the constitutionality of section 31 of the Public Service Commission Act went to the mandate of the Communications Authority of Kenya (CAK) in managing its human resource vis--vis the mandate of the State Corporations Advisory Committee (SCAC) and Public Service Commissions (PSC). Those were matters which called on the court to address the constitutionality of various statutes looked at together with the Constitution and make a finding.
- The employment and Labour Relations Court Act stipulated the procedure for the enforcement of employment rights. The petitioner had filed the petition on his own behalf and on behalf of the Kenyan public as the issues addressed affected and were likely to affect the entire country. Such matters gave the petitioner proper standing before the court.
- The collectivity of public service and being a public officer were all interlinked into public service. The only exception was state officers perfuming a function within a State organ. All other persons serving the people of Kenya were in the public service. That was the constitutional definition under article 260 of the Constitution. Employees of state corporations were public officers within the meaning of article 260 of the Constitution.
- Remuneration and benefits were not directly drawn from the consolidated fund or directly provided by Parliament. Under section 11 of the State Corporations Act, state corporations were required to prepare and submit to the line minister and the Treasury for approval, yearly estimates of their revenue and expenditure accompanied by proposals for funding of the projects they were to undertake, or implement during the financial year. State corporations and parastatals generated their own revenue for expenditure, and their funding was not necessarily wholly provided for by Parliament.
- Before determining whether an individual was a public officer and in line with the provisions of article 259 of the Constitution, the court considered the following questions;
- Was the person concerned in an office in the national government, the county government or the public service?
- Did that person receive remuneration or benefits payable from the consolidated fund or directly by moneys provided by Parliament?
- Did that person perform a function within a State organ or a state corporation?
- Officers and persons serving/working in state corporations were public officers within the meaning of Article 260 of the Constitution. A body corporate established under an Act of Parliament was a state corporation within the meaning of that Act, and therefore subject to the Constitution. All state corporations had national outreach by nature and design and fell squarely under the auspices of the National Government. The CAK was also a public service institution that was in existence under the former Constitution and its officials and employees would be considered public officers under it. The effect of the transitional clause in section 31 of the sixth schedule to the Constitution applied with regard to the CAK employees.
- The import of Katiba Institute & another v Attorney General & Another; Julius Waweru Karangi & 128 others (Interested Parties)  eKLR was not that officers of state corporations were not within the meaning of public officers and did not hold office in public service. The matter related to the appointment of board chairpersons and board members thereof and not with regard to persons employed on contract to work and serve under the Board.
- An employee in a parastatal or a state corporation and a board member appointed under the State Corporations Act by the President held different positions in fact and in law. The two could not be equated and placed under the same legal regime. One was under an appointment by the President and subject to removal under the same mandate whereas an employee was recruited and appointed under terms and conditions of service to perform a public service in the state corporation. State corporations were agencies of the government.
- The CAK had been in existence since the year 1999 regulating the communications/ICT sector in Kenya, a resource that belonged to the people of Kenya, the public, held in trust for them by the government. The employees of the CAK were paid from public funds, not private funds.
- All other public officers had to include all shades of public servants, including employees of the state corporations, which like the CAK were agents and instrumentalities of the government. The involvement of the Public Service Commission, PSC, with regard to all other public officers, was to be limited to advising the government and its agencies in the human resource policy, not defining and running the process.
- The constitutional threshold for regulation of public service was a mandate of the PSC. Article 234(2) of the Constitution which directed in mandatory terms that the Commission was to establish and abolish offices in the public service and appoint persons to hold or act in those offices, and to confirm appointments. That was therefore the repository of all public service regulation in terms of terms and conditions of service in its collectivity. It was a constitutional mandate.
- The State Corporations Act in its preamble stated that the Act made provision for the establishment of state corporations; for control and regulation of state corporations; and for connected purposes. The control and regulation of state corporations was therefore statutory. Pursuant to section 5(3) of the State Corporations Act, the Board of a state corporation was allowed to employ staff on terms and conditions of service as the Minister in consultation with the Committee may approve. That was in contradiction of article 234(2) read together with article 260 of the Constitution on regulation of public service and definition of who a person in the public service was.
- The entity given constitutional authority to employ, issue terms and conditions of service, review, audit and advice with regard to public service was the PSC. Employees in the service of the CAK were subject to the constitutional mandate of the PSC.
- The legal opinion issued by the Attorney General (AG) should translate into legislation giving effect/force to the provisions of article 234 of the Constitution. That was to ensure the intentions of the people of Kenya in stating that the Public Service Commission was in charge of the public service were not negated by other statutory provisions in force as at August, 2010.
- The AG had to address such matters with urgency and harmonise the legislation with the Constitution as without giving a proper framework, litigation such as the instant petition would continue to be filed out of great need to streamline public service applied by different agencies due to the nature of the statutory mandate specific to each authority, agencies, state corporations and parastatals. A common thread should flow from the PSC as mandated under the Constitution. Without it, authorities such as the CAK would continue to err for no fault of their own.
- State corporation staff were not officers in the public service and were outside the mandate of the Salaries and Remuneration Commission save the constitutional mandate of the Salaries and Remuneration Commission in addressing remuneration for public officers and giving advice to public service was fundamentally and foundationally different from that of the Public Service Commission who was given constitutional authority to;
- establish and abolish offices in the public service; and
- appoint persons to hold or act in those offices, and to confirm appointments.
- The AG was to take forward the opinion expressed above and give it the force of law. The diverse state corporations under the mandate of the SCAC particularly the CAK would benefit in terms of the law, policy and human resource instruments in force.
- The PSC was also given constitutional authority under article 234(2)(d) to investigate, monitor and evaluate the organisation, administration and personnel practices of the public service. Such mandate called for a proactive Commission. By standing aside to wait for state corporations to make requests for investigation, monitoring and evaluation was not sufficient. It could not happen considering the elaborate measures taken by the CAK to review its Human Resource instruments in consultation with the SCAC and the Minister had since approved the same for implementation. Such a situation demonstrated inaction on the part of the PSC and an abdication of its constitutional mandate.
- The PSC had failed to investigate the practices of the CAK and SCACs as provided for under section 60 of the Public Service Commission Act. The withdrawal of the delegated authority issued to the CAK was not sufficient. It was imperative that pursuant to article 234(2) of the Constitution, the PSC in conjunction with the the AG should ensure legislative changes in managing public service. That would build harmony and cohesion under one constitutional commission, the PSC, by taking charge over public service. That was the essence of article 234(2)(g) and (h) of the Constitution that the PSC should review and make recommendations to the national government on conditions of service, qualifications of officers and evaluate and report to the President and Parliament on the extent to which the values and principles mentioned in articles 10 and 232 of the Constitution were complied with in the public service. Unless the PSC was able to draw from those provisions and address them on priority basis, petitions such as the instant one would continue to be filed.
- The complaint received from the petitioner should have moved the PSC into action. They had opted to blame the CAK and SCAC. Such did not benefit the people of Kenya in any way. It only frustrated persons in the public service for lack of a proper legislative framework supported by policy and human resource instruments that were streamlined under the Public Service Commission.
- Pursuant to section 27 of the State Corporations Act, the CAK and SCAC were under the law allowed to review and investigate the affairs of the CAK and make recommendations and upon advice, review the establishment and reorganise its functions; and where necessary, advise on the appointment, removal or transfer of officers and staff. The 1st respondent in consultation with the SCAC and the Minister had reviewed its human resource and policy instruments and advertised for various positions internally and externally, which was the subject of the petition. That was done in recognition of the existing laws and in adherence to the provisions.
- Challenges would not have arisen had the PSC been proactive in undertaking its mandate. The CAK was bound to follow the law as it was. The advertisements posted were within law and the human resource instruments approved for use by the SCAC and the Minister pursuant to section 27 of the State Corporation Act. The relief sought to declare the powers of the SCAC in approving the human resource instruments for use by the CAK would not issue. The CAK and SCACs had adhered to the law as it was.
- Section 31 of the Public Service Commission Act allowed the PSC to delegate its functions in whiting but such section was in conflict with articles 232, 233, 234, 235 and 236 with regard to the public service and the Public Service Commission under the Constitution and such section should be declared null and void.
- The Public Service Commission as an independent constitutional commission was empowered under article 234(5) of the Constitution to delegate its functions and powers. Delegation of function and power did not negate the power held by a principal. Responsibility lay with the principal. Delegation did not imply parting with powers by the person who delegated but conferred authority to do things which otherwise the person delegating would have to do himself. A power to delegate further could only arise where it was within the scope of the primary delegate's authority.
- It was constitutional and lawful for the PSC to delegate any of its functions to any of its members, officer, body or authority in the public service on condition that it was done in writing, with or without conditions. The PSC had issued such authority and delegated its powers to the CAK by letter dated July 30, 2018 save such matter had since been recalled by letter dated September 30, 2019. Regulation of the human resource of state corporations was the mandate of the PSC.
- Various statutes, policies and practices in existence which gave the SCAC's various duties and responsibilities to regulate state corporations should be addressed by the PSC and the AGs accordingly to avoid further petitions in that regard. Such matters could well be addressed for the Executive and Parliament with expert advice from the PSC in consultation with the the AG to address and ensure adherence to article 234(2)(h) of the Constitution. There were far-reaching implications in the failure by the PSC to undertake an investigation and audit of all state corporations, including the CAK pursuant to article 234(2)(d) of the Constitution to ensure that the public service was efficient and effective towards the development of human resources in the public service. That could only be achieved through concerted efforts between all the listed respondents.
- The CAK's Human Resources policies and guidelines prescribed and approved by the SCAC were to remain in operation and application until further action was undertaken on the same by the PSC and the AGs. The PSC was to address and investigate and audit the CAK human resource instruments, policies and practices within 365 days from the date of the judgement and issue appropriate recommendations. The PSC was to report to the court on the measures undertaken to harmonise the law to meet the constitutional threshold pursuant to article 234 of the Constitution. The CAK had been granted operational autonomy by the SCAC. That was lawful and valid and would suffice pending action by the PSC and the AGs in the next 365 days. The orders were to run concurrently with the PSC undertaking an investigation of the organisation, administration and personnel practices of the CAKs and address.
- The CAK was to proceed to use and apply and or implement the approved human resource policies and guidelines prescribed and approved by the SCAC for the next 365 days which was a reasonable time and space to engage and ensure a streamlined public service through the PSC.
- The orders sought with regard to issuance of an injunction stopping the recruitment of director frequency spectrum management and director competition management of the CAK, which was done in the context of existing legislation out of no fault of the CAK and SCACs, would not issue. The recruitment of such officers was to proceed as advertised in application of approved human resource policies and guidelines applicable to the CAK.
- To ensure completeness and taking into account the date the advertisements were closing the same was stopped by the court for good cause and to allow for the hearing of the petition, the CAK was to post and publicise a new date for receipt of all applications. That would give interested and eligible applicants a reasonable opportunity to put in their applications.
- With regard to the internal advertisement for various vacant positions of the CAK, every employer had the prerogative to manage its internal affairs but that prerogative should not be used to deny any eligible employee a deserved promotion on the basis of fair competition and merit. Where the CAK had developed tools to ensure fairness and reward merit, with the advantage of expertise drawn from the SCAC, the internal advertisement for various positions was well addressed.
- The core objective of article 232 of the Constitution was to ensure that all public/state institutions made all appointments and promotions on the basis of fair competition and merit and an advertisement was meant to promote fair competition among eligible candidates.
- There existed no law which required an employer to confirm an officer in a vacant position on account of having acted in such position whatever the period of service. The parameters of article 232 of the Constitution applied. Every eligible candidate had to be given a reasonable opportunity to apply and fairly compete with others.
- The petitioner was seeking to had and be provided with certified copies of Delegated instrument and revocation/withdrawal thereof of any delegated authority to the SCAC to carry out human resource powers and functions of the Public Service Commission. A letter of delegated authority was issued and dated July 30, 2018 and which was recalled by letter dated September 30, 2019. Such matter was not controverted in any manner. The facts as stated were part of the court record.
- A consent filed in a different suit in the year 2015 could not apply in perpetuity to regulate the employment of all employees of the CAK particularly with regard to conversion of employment status from permanent and pensionable to contract terms even where the law permitted and the subject employee had given consent pursuant to section 13 of the Employment Act, 2007.
- An employer had the prerogative to issue employment terms and conditions to each employee based on the business need and operational requirements save where the employer sought to change such terms from one employment regime to the other, such matter had to be brought to the attention of the employee and who should give consent in writing. Conversion of employment terms and conditions was lawful and a legitimate practice at the shop floor subject to adherence to the applicable law, agreement or private treaty with the employee or the representative trade union or employers organisation/association.
- Section 10(5) of the Employment Act, 2007 required that any change to the employment contract be made in consultation with the subject and affected employee and upon the revision of the contract of service, it had to be done in writing and the subject employee(s) must signify his/her consent to the change/revision. In the instant case, where indeed the respondent had made changes, revised and or reviewed the terms and conditions of employment of any employee, there was need for interrogation as to whether written consent and approval was obtained and if so, whether the subject employee was aggrieved by any matter and if not, the matter must rest as the consent entered into in any other matter between another employee(s) and the CAK had to be looked at in its own merits. Employment was personal and specific and every employment contract had to be addressed on its terms and conditions.