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ELRCPartially AllowedPetition No. 75 of 2016· [2018] KEELRC 2379 (KLR)

Peter Macithi Muigai v Cabinet Secretary for Environment,Natural Resources & Regional Development Authorities & 3 others [2018] KEELRC 2379 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2018
HWHellen S. Wasilwa
4,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a state agency head's re-appointment was illegal because it skipped competitive recruitment and was never gazetted.

What this practically means

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Executive summary

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The Petitioner, acting in the public interest under Articles 22 and 258 of the Constitution, petitioned the Employment and Labour Relations Court at Nairobi alleging that the 1st and 2nd Respondents breached Articles 10, 153 and 232 of the Constitution by failing to competitively recruit and replace the Director of the Kenya Forestry Research Institute (KEFRI), Ben Chikamai, whose third term was not gazetted, and by failing to appoint a new Board after its term expired. He sought declarations that the Respondents violated Articles 10 and 232, that the 1st Respondent failed to act under Article 153, that the 4th Respondent was illegally in office, plus general reliefs and costs. The 1st and 3rd Respondents argued the Petition was properly a judicial review matter under Order 53, that the Circular OP/CAB.9/1A of 23rd November 2010 governed re-appointments and was followed, that re-appointments need not be competitive, and that Mwongozo post-dated the re-appointment. The 4th Respondent relied on his evaluated performance and the same Circular. The Court framed four issues and held that although the parties followed the 2010 Circular, the re-appointment effective 1st May 2015 was never gazetted and took effect after Mwongozo came into force, so retrospectivity did not arise; failure to adhere to Mwongozo contravened the law and Articles 10 and 232. The Cabinet Secretary's illegal acts fell on her individually under Article 153(2). The Court declared the 4th Respondent illegally in office, ordered him to vacate immediately, directed an Acting CEO for a maximum of six months pending board appointment and competitive recruitment, ordered personal service on the 1st Respondent, and, given the public interest nature of the Petition, ordered each party to bear its own costs.

Key legal issues

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01

Whether the 1st and 2nd Respondents violated Articles 10 and 232 of the Constitution

Holding

They did, by re-appointing the 4th Respondent without adhering to Mwongozo and without a competitive process or gazettement

Reasoning

The Court examined the Government Circular OP/CAB.9/1A of 23rd November 2010 governing renewal of CEO appointments and found the Board evaluated and recommended renewal and the CS re-appointed, but the re-appointment was never gazetted. Mwongozo, in force by the time the appointment took effect on 1st May 2015, required competitive recruitment of CEOs. The respondents could not claim ignorance of the Code signed by the President in March 2015.

p. 6
02

Whether the 1st Respondent contravened Article 153 of the Constitution

Holding

Yes; as Cabinet Secretaries are individually accountable under Article 153(2), the illegal re-appointment falls on her individually

Reasoning

Article 153(2) makes Cabinet Secretaries accountable individually. Having sanctioned the re-appointment of the 4th Respondent contrary to Mwongozo and the constitutional values, the 1st Respondent failed in her duty to ensure proper appointment of KEFRI's Chief Executive Officer.

03

Whether the 4th Respondent is legally in office

Holding

No; the Court found him illegally in office and directed him to vacate immediately

Reasoning

Because the re-appointment did not comply with Mwongozo or Articles 10 and 232, and was never gazetted, the 4th Respondent's third term was illegal. The Court noted the illegal term was to end April 2018, that no KEFRI board was in place, and directed immediate vacation of office with an interim Acting CEO for a maximum of six months pending competitive recruitment.

Legal principles established

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  • Re-appointment of a Chief Executive Officer of a state corporation effective after Mwongozo came into force must comply with Mwongozo and the constitutional values of competitive recruitment under Articles 10 and 232
  • Mwongozo's competitive recruitment requirement was not retrospective where the re-appointment took effect after the Code came into force

Court orders

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  1. 1.The 4th Respondent vacates his office as Director of KEFRI immediately.
  2. 2.The 1st Respondent should henceforth appoint an Acting Chief Executive Officer for a maximum of 6 months, during which period a board should be appointed and competitive recruitment of the Chief Executive Officer done.
  3. 3.The judgment to be served upon the 1st Respondent personally and action commenced as ordered by the Court.
  4. 4.Each party to bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1.5 (Mwongozo reference), 10, 22, 22(1), 23, 41, 73, 75, 153, 153(2), 162, 232, 232(1), 258, 259
  • State Corporations ActSection 27(1)(c) of Cap 446
  • Science and Technology and Innovation ActFourth Schedule, Cap 28 Laws of Kenya
  • Interpretation and General Provisions ActSection 68
  • Civil Procedure ActOrder 53
  • Public Benefits Organizations Act
  • Code of Governance for State Corporations (Mwongozo)Paragraph 1.18; Article 1.5
  • Government Circular Ref No. OP/CAB.9/1A of 23rd November 2010
  • Executive Order No. 7

Cases cited (6)

  • Benson Riitho Mureithi Vs J.W.Wakhungu
    HC Petition 19 of 2014
  • Anne Kinyua Vs Nyayo Tea Zone Development Corporation and 3 Others
    (2012) Eklr
  • Ali Hassan Joho & Another Vs Suleiman Shahbal & 2 Others
    Civil Appeal No. 12 of 2013
  • Alphonse Mwangemi Munga & 10 Others Vs African Safari Club Limited
    (2008) Eklr
  • Republic Vs Cabinet Secretary for Education, Science and Technology and 3 Others
    (JR Case No. 280 of 2013) (2014) Eklr
  • Pastoli Vs Kabale District Local Government Council and Others
    (2008) EA 300
Jurisdiction invoked
Articles 22, 23, 162 and 258 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Macithi Muigai v Cabinet Secretary for Environment,Natural Resources & Regional Development Authorities & 3 others [2018] KEELRC 2379 (KLR)", Case Analysis (2018). Petition No. 75 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2379/eng@2018-01-31

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