Torutt v Coast Water Works Development Agency & another; Commission for Human Rights and Justice (Interested Party) (Civil Appeal E059 of 2021) [2024] KECA 469 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that state corporation CEOs have no automatic right to a full three-year renewal — the Cabinet Secretary can lawfully approve a shorter term.
What this practically means
#Executive summary
#Key legal issues
#Whether the Mwongozo Code entitles a state corporation CEO to a renewal for a term equal in length to the initial three-year term
No. The Code makes renewal discretionary and does not expressly prescribe the length of the renewed term; the period is a policy decision for the Board and the Cabinet Secretary.
The court read the Mwongozo Code provision that a CEO holds office for a three-year term renewable once subject to performance evaluation. It found the Code silent on the length of the renewed term. Holding that the decision to renew and on what terms is a policy decision guided by considerations of resources and efficiency, the court declined to confine the Board's discretion to the mere fact of renewal. Extending the term beyond what the Cabinet Secretary approved would amount to interference with that policy discretion.
The respective roles of the Cabinet Secretary and the Board in the appointment and renewal of a state corporation CEO
Hiring the CEO is the Board's preserve, but setting terms and conditions of service, including the term of renewal, rests with the relevant government organ; the Board's three-year recommendation was not binding on the Cabinet Secretary.
Relying on paragraph 1.2(k) of the Mwongozo Code, the court held the Board hires the CEO on terms approved by the relevant government organ. It agreed with the George Omondi decision only to the extent that the Cabinet Secretary does not appoint the CEO, but noted the Board's communication was a recommendation, which the Cabinet Secretary was free to accept or vary. The Cabinet Secretary's decision to approve one year for continuity during recruitment of a new CEO was lawful.
Whether the appellant established a legitimate expectation of a three-year renewal
No. The Board had no mandate to set renewal terms, so its recommendation could not induce a legitimate expectation protected by law.
The court applied the doctrine of legitimate expectation as set out by the Supreme Court in Communications Commission of Kenya v Royal Media Services: there must be a clear, unambiguous and lawful representation by a person competent to make it, and the expectation must be legitimate in the sense of being protected by law. Since the Board could not decide the CEO's tenure, any representation it made could not ground a legitimate expectation, and the appellant had in any event accepted the one-year extension.
Whether the appellant's constitutional rights were violated by the one-year renewal and the decision not to extend further
No violation was proved. The appellant voluntarily accepted the one-year extension, and no wrongdoing was established against the respondents.
The court agreed with the learned Judge's conclusion that the petitioner failed to establish the alleged human rights violations and the basis of the alleged legitimate expectation. The correspondence showed the appellant understood and accepted the one-year extension on 7th May 2020, and the implementation of the Cabinet Secretary's decision was lawful, defeating claims based on Articles 27, 41, 47, 28 and 236 of the Constitution.
Legal principles established
#- The Mwongozo Code does not prescribe the length of a CEO's renewed term; where the law does not expressly prescribe the period of a renewed term, the period is left to the discretion of the Board as a policy decision
- While the mandate of hiring the CEO of a state corporation is the preserve of the Board, the terms and conditions of the CEO's service are set by the relevant government organ, whose decision on renewal is not bound by the Board's recommendation
- No legitimate expectation can arise from a representation by a body lacking authority to take the decision, and there can be no legitimate expectation against clear provisions of the law
- On a first appeal, the appellate court must reconsider and evaluate the evidence and draw its own conclusions, but will only depart from the trial court's findings where they are not based on evidence, were based on wrong principles, or where discretion was exercised injudiciously
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Employment and Labour Relations Petition No. E004 of 2021
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court under Article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Torutt v Coast Water Works Development Agency & another; Commission for Human Rights and Justice (Interested Party) (Civil Appeal E059 of 2021) [2024] KECA 469 (KLR)", Case Analysis (2024). Civil Appeal No. E059 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/469/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.