Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company & 7 others [2014] KEELRC 1020 (KLR)
The bottom line
#A Kenyan court ruled that a company cannot advertise a director's seat as vacant without an actual decision to remove the sitting director.
What this practically means
#Executive summary
#Key legal issues
#Capacity in which the petitioner held the directorship
The petitioner held the office of director representing the local business community, evidenced conclusively by the company secretary's letter of 18.12.2012, the minutes of 17.12.2012 not having been filed.
The minutes of the meeting of 17.12.2012 were not filed; the respondents filed belated extracts of other meetings, which the court found suspect. No party disputed the genuineness of the company secretary's letter conveying the appointment as business community representative for three years to about 18.12.2015, so the letter was conclusive evidence of the position held.
Whether the petitioner's position was abolished
The position of director representing the business community was retained under the amended regulation 69; no abolition occurred, so no redundancy accrued.
The special board meeting of 22.01.2014 and extra-ordinary general meeting of 19.02.2014 amended the articles so that regulation 69 still included one representative from the local business community — the very office the petitioner held. The court explains that abolition of office would ground redundancy, but here the office was re-established, not abolished.
Whether a vacancy existed in the petitioner's position
No vacancy existed: no removal decision, no resignation, and no constitutional, statutory or contractual provision rendered the position vacant.
A vacancy arises from termination, resignation or a constitutional/statutory/contractual mechanism. None of these was shown; the advertisement 'pretended' to publish a vacancy without any decision by the general meeting. Regulation 87(a) and (b) provided a three-year term with retirement by rotation at an AGM.
Entitlement to constitutional remedies
The declaration of unconstitutionality of the advertising process succeeded, and just transitional measures were ordered; but the prayers against the 2nd, 4th and 6th respondents personally and the 'escapists' declaration failed.
The advertised declaration of vacancies lacked any underlying official decision by the board or general meeting, making it non-accountable, non-transparent and, vis-à-vis the petitioner, an unfair administrative action and unfair labour practice contrary to Articles 47 and 41. However, the advertisement was not directly attributable to the named individual respondents, and the abdication claim was not established.
Legitimate expectation and fair administrative action
The petitioner's legitimate expectation to serve his three-year term was valid; the advertisement was made without jurisdiction and supported the breach-of-legitimate-expectation claim.
The petitioner was not party or privy to any adverse decision; his expectation was to serve his full three-year term, not to act unlawfully. Breach of legitimate expectation alone does not justify a remedy absent manifest injustice or jurisdictional impairment — here the advertisement was made without relevant jurisdiction or authority.
Legal principles established
#- A vacancy in an office arises only upon termination of the holder's engagement, resignation or other leave, or as provided by the Constitution, legislation or agreement; an advertisement cannot substitute for such a decision.
- Abolition or re-establishment of an office does not by itself terminate the holder's employment; a termination decision by the relevant authority is required, failing which the holder continues in office.
- Implementation of corporate governance guidelines and constitutional realignment must respect accrued contractual rights, and discriminatory implementation is an unfair labour practice under Article 41.
Court orders
#- 1.A declaration that the pretentious decision and process of advertising and intended filling of the positions of 6 directors of the 1st respondent was opaque, egregious, clandestine, capricious, whimsical, and contrary to Articles 41 and 47 of the Constitution of Kenya hence unconstitutional, and the decision and process of advertising and consequential processes are null and void.
- 2.A declaration that in realigning the organisation and operations of the 1st respondent to the Constitution of Kenya, 2010 and to good corporate governance, the 1st to 6th respondents by themselves and their respective agents shall institute just transitional measures that respect the petitioner's accrued constitutional and other rights and obligations as the appointed serving director of the 1st respondent representing the local business community.
- 3.The respondents to pay the petitioner's costs of the petition.
- Jurisdiction invoked
- Article 41 (fair labour practices) and Article 47 (fair administrative action) of the Constitution of Kenya, 2010; Employment and Labour Relations Court jurisdiction upheld in the court's ruling of 30.04.2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company & 7 others [2014] KEELRC 1020 (KLR)", Case Analysis (2014). Petition No 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1020/eng@2014-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.