The Governor Bungoma County v John Mining Temoi & 8 others
The bottom line
#Kenya's Court of Appeal ruled that being a small community doesn't automatically make a group 'marginalised' under the Constitution, and struck down Bungoma County's special-status declaration.
What this practically means
#Executive summary
#Key legal issues
#Mootness of the recruitment-related grounds
The appeal on the nullification of the recruitment process was moot because the Chief Officers had lawfully completed their five-year contractual terms while execution was stayed; the court confined itself to the marginalisation question which outlived the judgment.
The Chief Officers were employed on five-year contracts coinciding with the term of the county government. Execution of the impugned judgment was stayed and the officers completed their terms. The petitions targeted a specific recruitment process and specific officers, so no practical significance remained except on the marginalisation question.
Whether Bongomek Community is a marginalised community or group under Article 260
The High Court's finding was per incuriam because it ignored the constitutional definitions; the indicators it used (absence of representation in governance and jobs) fall outside the Article 260 definitions, and the pleaded case was of a minority, not a marginalised, community.
Article 260 defines marginalised community in four categories and marginalised group by reference to discrimination under Article 27(4). The trial court used a dictionary definition instead. The factors it relied on do not fit the constitutional definitions, and its final declaration of 'minority group' was inconsistent with its own finding of 'marginalised community', the two not being synonymous.
Whether failure to appoint a Bongomek Community member as Chief Officer was discrimination under Article 27(4)
No discrimination was proved; it was not shown that a community member competitively qualified on merit but was denied appointment because of community membership. In fact Protus Kirui from the community was ranked third in his category.
The declaration sought concerned a specific recruitment exercise. Discrimination in the legal sense requires differential treatment on a prohibited ground. The evidence showed a community member was shortlisted and ranked third, and that selection was based on sub-county representation, so no causal link between community membership and non-appointment was established.
Role of legislation and affirmative action in protecting minorities within counties
Grievances of minorities are progressively realised through affirmative action programmes, policies and legislation under Articles 27(6), 56 and 197(2)(b); absent such frameworks, courts are ill-equipped to identify minorities or craft appropriate relief.
Relying on the Supreme Court's Advisory Opinion No. 2 of 2012, the court held affirmative action requires careful, methodical, staged measures. Since Parliament had not enacted legislation prescribing mechanisms to protect minorities within counties, the trial court's broad declaration was vague, exceeded the employment dispute, and usurped a legislative function.
Legal principles established
#- A minority community is not synonymous with a marginalised community or marginalised group under Article 260 of the Constitution; the two concepts are distinct
- Courts cannot make open-ended declarations that a community is marginalised where the constitutional definitions in Article 260 have not been satisfied and where no legislative or affirmative action framework exists
- An employment discrimination claim fails unless it is shown that a member of the claimant community competitively qualified on merit but was denied appointment wholly or mainly because of community membership
- The principle of inclusiveness in appointments applies only to candidates who have met the applicable appointment criteria
Court orders
#- 1.The appeal allowed only to the extent of the declaration concerning the marginalisation/minority status of Bongomek Community
- 2.The High Court's declaration that Bongomek Community is a minority group to be treated as such in the governance of Bungoma County set aside
- 3.The order of costs in the High Court set aside
- 4.Each party to bear their own costs of the appeal and of the costs in the court below
- On appeal from
- High Court of Kenya at Bungoma
- Constitution Petition No. 2 & 2A of 2014 (Consolidated)
- Jurisdiction invoked
- First instance constitutional petition appealed to the Court of Appeal under Article 164 of the Constitution (Court of Appeal Rules); the judgment does not invoke a specific appellate provision, but Rule 32(3) of the Court of Appeal Rules governed delivery after a judge's retirement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Governor Bungoma County v John Mining Temoi & 8 others", Case Analysis (2019). Civil Appeal No. 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/29/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.