Cabinet Secretary, Ministry for the National Treasury and Economic Planning & another v Mamo & 13 others (Civil Appeal E143 of 2024) [2025] KECA 770 (KLR)
The bottom line
#Kenya's Court of Appeal ruled the government can revoke board appointments, but only after giving notice, reasons, and a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court had jurisdiction to hear and determine the Amended Petition although it was transferred to it by the ELRC
- 2.Whether the trial court erred in finding that the 1st-5th respondents established violation of their rights under Articles 47 and 236 of the Constitution and of their legitimate expectation to serve on the Board for the full three-year term
- 3.Whether the trial court erred in finding that the 1st appellant acted in violation of the Constitution in revoking the 1st-5th respondents' appointments and appointing the 6th-12th respondents
Key legal issues
#Whether the High Court had jurisdiction over a constitutional petition transferred to it by the ELRC
The transfer was valid; the trial court had jurisdiction.
The decisions relied on by the appellants (Equity Bank, Phoenix, Mumba) concerned transfer of suits filed in courts lacking jurisdiction. This matter was a constitutional petition under Article 22 governed by the Mutunga Rules, rule 8 of which permits transfer, and this Court's binding decision in Mugendi directs courts of equal status to transfer such matters among themselves.
Whether the revocation of the 1st-5th respondents' appointments violated Articles 47 and 236 of the Constitution
Yes; the revocation without notice, reasons or a hearing was arbitrary and unconstitutional.
The appointees were public officers under Article 260 once appointed; the statutory power of appointment and revocation had to be exercised in conformity with Articles 10, 47, 236 and Chapter 6. Pre-2010 statutes cannot be read as limitations on Article 47; section 7 of the Sixth Schedule requires existing law to be conformed to the Constitution.
Whether the appointees had a legitimate expectation to serve the full three-year term
No; the trial court erred on this point.
Their appointments were not merit-based and were made for no discernible reason, hence at the pleasure of the appointing authority. Following Pharmaceutical Manufacturing, a legitimate expectation requires an express, clear and unambiguous promise. Their only legally grounded expectation was that any removal would comply with Articles 47 and 236 and the Fair Administrative Actions Act.
Legal principles established
#- Holders of offices under the Local Authorities Provident Fund Act or the State Corporations Act who act for the public, administer public resources and are paid from public funds are public officers under Article 260, and their removal must comply with Articles 10, 47 and 236 of the Constitution
- Statutory power to appoint and revoke public appointments, however broad, must be exercised in accordance with constitutional principles of fair administrative action, including notice and reasons
- Pre-2010 legislation must be construed with the alterations, adaptations, qualifications and exceptions necessary to conform with the Constitution; it cannot be read as a limitation on constitutional rights
- Under the Mutunga Rules and Daniel N. Mugendi, the High Court and courts of equal status have jurisdiction to transfer constitutional petitions filed under Article 22 to courts of competent jurisdiction
- Persons appointed to public boards on opaque political or other non-merit considerations acquire procedural rights as public officers but have no legitimate expectation to serve the full stated term
Court orders
#- 1.Appeal allowed only to the extent that the trial court's finding on legitimate expectation is set aside
- 2.Findings of the trial court on jurisdiction and on the violation of Articles 47 and 236 of the Constitution affirmed
- 3.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution (first appeal from the High Court); petition originally instituted under Article 22 of the Constitution
Relief refused
#Upholding the trial court's finding that the 1st-5th respondents' legitimate expectation to serve the full three-year term was violated
The appointments were not merit-based and were at the pleasure of the appointing authority; the only protected expectation was that any removal would follow due process
Costs
Each party to bear its own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are therefore satisfied that the trial court properly found that the 1st appellant exercised power arbitrarily in revoking the appointment of the 1st to 5th respondents from the Board.
it is legislation predating the Constitution that must be construed with the ‘alterations, adaptations, qualifications and exceptions’ required to make it conform with the constitutional imperatives under the 2010 Constitution.
There is thus binding jurisprudence from this Court and Rules made by the Chief Justice in compliance with the constitutional directions under Article 22(3) that expressly grant the High Court and, by extension, courts of equal status, jurisdiction to transfer petitions filed under Article 22 to courts of competent jurisdiction.
given the manner of their appointment, they did not have a legitimate expectation to remain on the Board for the term indicated in their letters of appointment.
In light of our findings above, we direct that each party bear its own costs of the appeal.
Issues in the judgment
#The judgment refers to section 5 of the Local Government Provident Fund Act in some places and section 5 of the Local Authorities Provident Fund Act / section 7(3) of the State Corporations Act in others, with inconsistent naming of the governing statute
The appellants' submissions attribute the appointing power to section 7(3) of the State Corporations Act while the analysis refers to section 5 of that Act, without reconciling the two
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary, Ministry for the National Treasury and Economic Planning & another v Mamo & 13 others (Civil Appeal E143 of 2024) [2025] KECA 770 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/770/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.