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ELRCDismissedPetition No 16 of 2017· [2019] KEELRC 270 (KLR)

Qabale Diba Badake & 2 others v Public Service Board Marsabit County & 3 others; National Gender & Equality Commission (Interested Party) [2019] KEELRC 270 (KLR)

High Court of Kenya
20 November 2019
NMNzioki wa Makau
3,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, persons with disability, challenged the recruitment of sixteen Chief Officers for Marsabit County, contending that the County Public Service Board shortlisted them but the Governor nominated no disabled person, in violation of Articles 10, 27, 54, 56 and 232 of the Constitution, the County Governments Act and international conventions. They sought declarations that the process was unconstitutional and void ab initio, mandatory orders compelling adherence to regional, gender and ethnic balance and inclusivity, and disclosure of all appointments made by the Board. The Respondents maintained that a fair, competitive, merit-based process was followed; the Petitioners were shortlisted and interviewed but did not rank among the top three scorers, and appointments were made on merit with due regard to diversity. The 4th Respondent (the County Assembly) argued the grievances belonged to the vetting and approval process under Section 8 of the Public Appointments (County Assemblies Approval) Act, citing separation of powers and exhaustion of internal mechanisms, and that it had vetted and approved the nominees in strict compliance with the law. The court held that the State must progressively realize the 5% disability representation principle, that the Petitioners failed to demonstrate discrimination or preferential treatment of the appointees, and that there was adherence to the law in the nominations. While affirming that courts will intervene where there is constitutional basis, the court found no reason to interfere. The Petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the Petitioners were discriminated against as persons with disability in the recruitment of County Chief Officers

Holding

No discrimination was established; the Petitioners were shortlisted, interviewed and merely did not rank among the top three scorers, and appointments were made on merit

Reasoning

The Board applied uniform criteria of merit, competence and diversity to all applicants including the Petitioners, who were shortlisted and interviewed. The nominees were the highest scorers. No evidence was adduced that other applicants were preferentially treated on account of disability. Appointments guided by fair competition and merit under Article 232(1)(g) did not discriminate. The 5% disability representation principle is subject to progressive realization under Article 54(2).

p. 4
02

Whether the court should have restrained itself in deference to the County Assembly's vetting mandate

Holding

The court noted the doctrine of separation of powers but retained supervisory jurisdiction; on the facts there was adherence to the law and no reason to interfere

Reasoning

The 4th Respondent contended the grievances belonged to the vetting and approval process under Section 8 of the Public Appointments (County Assemblies Approval) Act, citing exhaustion of internal mechanisms. The court acknowledged the co-equal arms engage in checks and balances, the Assembly vetted and approved the nominees in compliance with the law, and no constitutional basis existed for judicial interference in this case.

p. 5

Legal principles established

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  • The requirement that at least 5% of members of appointive and elective positions be persons with disabilities is subject to progressive realization, not immediate realization
  • A petitioner alleging discrimination must demonstrate that they were discriminated against or that appointees were considered more favourably than they were
  • Courts will not interfere with County Assembly vetting absent a constitutional basis, respecting separation of powers and checks and balances

Court orders

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  1. 1.The Petition is dismissed
  2. 2.There be no order as to costs
  3. 3.It is so ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(3), 2, 3, 10, 27, 54, 54(2), 55, 56, 73(2), 232, 232(1)(g)
  • County Governments ActSections 34(e), 45, 65, 65(1) and (2), 66
  • Public Appointments (County Assemblies Approval) ActSection 8

Cases cited (7)

  • Northern Nomadic Disabled Persons' Organization (Nondo) v Governor County Government of Garissa & Another
    [2013] eKLR
  • In the matter of the principle of Gender Representation in the National Assembly (Supreme Court Advisory Opinion No. 2 of 2012)
  • Ashwander v Tennessee Valley Authority
    [1936] 297 U.S 288
  • Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others
    [2016] eKLR
  • Halima Ali Abdullahi v County Government of Wajir & 2 Others
    [2019] eKLR
  • Born Bob Marren v Speaker Narok County Assembly & 3 Others
    [2015] eKLR
  • John Musakali v Speaker County of Bungoma & 4 others
    [2015] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for violation of fundamental rights; Articles 10, 27, 54, 56, 232 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, "Qabale Diba Badake & 2 others v Public Service Board Marsabit County & 3 others; National Gender & Equality Commission (Interested Party) [2019] KEELRC 270 (KLR)", Case Analysis (2019). Petition No 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/270/eng@2019-11-20

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