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ELRCDismissedPetition dated 17th January 2014· [2014] KEELRC 431 (KLR)

Clifford Keya v Cabinet Secretary Ministry of Land, Housing & Urban Development & 2 others [2014] KEELRC 431 (KLR)

Employment and Labour Relations Court (delivering judgment on a constitutional petition and notice of motion; judgment text does not name the court, coram signed 'PRINCIPAL JUDGE')
11 June 2014
MNMathews N. Nduma
1,161 words in judgment
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The bottom line

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A Kenyan court refused to block public land ministry appointments, ruling the applicant failed to show a strong enough case for emergency relief.

What this practically means

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Executive summary

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The Petitioner, Clifford Keya, filed a petition dated 17th January 2014 against the Cabinet Secretary, Ministry of Land, Housing and Urban Development, the Public Service Commission and the Attorney General, seeking declarations that the promotion, appointment and deployment of Ministry staff by the Cabinet Secretary was unconstitutional and that transfers of such staff were the preserve of the National Land Commission. Simultaneously he sought conservatory orders restraining the Public Service Commission from acting on the Cabinet Secretary's letter of 10th January 2014 proposing staff changes. The Petitioner argued that the proposal contravened Articles 232(1)(g), 236, 73(2)(c), 153(4) and 155(2) of the Constitution and Section 12(2) of the Land Registration Act, which requires competitive recruitment and vetting of the Chief Land Registrar. The Public Service Commission, through its Secretary Alice Atieno Otwala, replied that it had not made substantive appointments; officers appointed on 21st January 2014 were acting appointments for at most three months pending competitive advertisement, and the Chief Land Registrar would be competitively recruited and vetted. The Petitioner filed no supplementary affidavit to controvert this. Applying the Giella v Casman Brown test and citing Mrao v First American Limited, Mathews N. Nduma, Principal Judge, declined to venture into the merits, held that no prima facie case was established, and observed that any unconstitutional appointment could readily be declared null and void afterwards. The application was dismissed with costs on 11th June 2014; the main petition remained pending.

Key legal issues

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01

Whether conservatory orders should issue pending determination of the petition

Holding

The application was dismissed because the Petitioner failed to establish a prima facie case, having filed no supplementary affidavit to controvert the Commission's evidence that appointments would be made competitively

Reasoning

Applying the Giella v Casman Brown test, the court considered the competing affidavits. The unchallenged replying affidavit of the Commission's Secretary showed that officers appointed on 21st January 2014 were only acting appointments for up to three months pending competitive advertisement, and that the Chief Land Registrar would be competitively recruited and vetted under Section 12 of the Land Registration Act. The court declined to venture into the merits at the interlocutory stage and found an adequate remedy in later nullification of any unconstitutional appointment.

p. 3
02

Effect of failure to file a supplementary affidavit to join issues

Holding

The court accepted the evidence in the replying affidavit as undoubted because it was not challenged

Reasoning

The Petitioner did not file a supplementary affidavit in response to the material averments in the Commission's replying affidavit, including that no substantive appointments had been made and that recruitment would be competitive. The court therefore had no reason to doubt that evidence, which undermined the claim that an unconstitutional appointment was imminent and that irreparable harm would follow.

p. 3

Legal principles established

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  • To obtain interim conservatory orders a party must satisfy the Giella three-part test: prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, balance of convenience
  • Where an appointment is made in contravention of the Constitution and statute, the court can later declare it null and void, so interim restraint is unnecessary

Court orders

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  1. 1.The notice of motion seeking conservatory orders is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 232(1)(g), 236, 73(2)(c), 153(4), 155(2), 234(2)(a)(ii)
  • Land Registration Act No. 3 of 2012Sections 12(2), 12, 13

Cases cited (2)

  • Giela V. Casman Brown
    [1975] EA 358
  • Mrao V. First American Limited and 2 others
    [2003] KLR
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition; Articles 232, 236, 73(2)(c), 153(4) and 155(2) invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Clifford Keya v Cabinet Secretary Ministry of Land, Housing & Urban Development & 2 others [2014] KEELRC 431 (KLR)", Case Analysis (2014). Petition dated 17th January 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/431/eng@2014-06-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.