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Kenya’s constitutional court has granted a temporary conservatory order, preventing a county government from going ahead with a recruitment exercise: an advert in the local media, published during March, mentioned that more than 600 staff were to be hired.

Human rights activist, Isaiah Biwott, who brought the court application, asked that the Baringo County government be ordered not to consider, short list, interview, select or appoint anyone to these positions, pending a full hearing of the matter.

He said that the county government would contravene sections of the constitution as well as public finance management regulations. These required county government ‘to set a limit of their expenditure on wages’ so as not to exceed 45% of the total revenue.


According to Biwott, the county’s wage bill was already over 45% and the employment of a further 600 people ‘would only further balloon the wage bill beyond the floor fixed by the law’. He described the proposed recruitment of hundreds of additional people as ‘illegal and unreasonable’ and a violation of the fiscal responsibility shouldered by the county government.

Biwott also quoted from an advisory letter written by the county budget co-ordinator, Kipkurui Selote, saying that the planned mass hiring exercise was unlawful, and advising that a gradual recruitment process should be undertaken instead, focused on ‘essential and critical needs’ – but this advice was ignored by the government.

Biwott claimed that too much public funds were being spent on a bloated wage bill at the expense of development programmes, and that the constitutional demands of openness and accountability, including public participation in financial matters, were being overlooked.


The acting county secretary, Elijah Kipkorir, disagreed. He described Biwott’s application as ‘alarmist’, ‘misconceived’ and as an abuse of court process.

He gave statistics that, he claimed, meant the application was based on ‘fictitious’ and ‘false’ figures.

Counsel for the county government said it had shown the court that the current wage bill stood as only just over 30% of its budget, meaning that it had room for further expenditure on salaries, ‘hence the decision to recruit more staff for better service delivery’.

There was in fact a greater prejudice for the people of the county if the interim order was granted, given the county administration’s duty to deliver services efficiently.


Judge Abuodha Jorum Nelson, who heard the application, reflected on the letter of the office of the controller of the budget, mentioned in Biwott’s founding papers, and sent to the administration a week after the advert for hundreds of new posts was published.

The letter said that the projected wage bill for the financial year 2021/2022 amounted to Ksh 3.38b which in turn translated to 46.3% of the total county revenue.

Referring to the plan to hire more than 625 personnel to fill vacancies across various departments, the controller commented, that though the ‘move’ was ‘good and right’, it would pose serious financial challenges and budget constraints for the county, as it would be ‘constrained to pay mainly salaries, at the expense of development priorities.’

The controller therefore suggested that the board should modify its employment strategy by gradually increasing the number of staff, in accordance with revenue resources.


Kipkorir, however, on behalf of the county government, described the letter as ‘strange’ and said it should be struck from the record. He also said the figures quoted by the county budget coordinator were ‘strange and unknown’, and that the advisory had been sent after the vacancies were advertised. This mean the advisory was ‘ill-timed’ and not in good faith.

Judge Nelson, however, pointed out that the office of the controller of budget was a constitutional position, established to ‘oversee and report’ on implementation of the budgets of national and county governments. Further, the controller was given the power to ‘refuse to approve’ withdrawals from public funds if satisfied that the withdrawal was not lawful.

In writing the letter, the county budget coordinator was exercising delegated power conferred on this office by the constitution. It was thus not enough for Kipkorir to dismiss the letter as ‘strange’ and urge that it be struck from the record.

Wished away

Such an advisory by an officer exercising constitutionally-mandated power to advise ‘cannot be simply wished away by describing such advice as strange and in bad faith. There has to be credible and valid ground to challenge and/or go against such advice.’

Even if the court were to agree with the county government that the positions advertised were ‘essential and necessary for effective service delivery’, that urgency could not trump the constitutional and statutory safeguards ‘in place to protect public finance from misallocation and use,’ the court said.

The public interest and constitutional values raised in the petition leaned in favour of granting the conservatory orders sought, said the judge, who also directed that the petition be fast-tracked for hearing.