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ELRCPartially AllowedPetition ELRC No. 51 of 2019 (Notice of Motion dated 21.06.2019)· [2019] KEELRC 1017 (KLR)

Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others [2019] KEELRC 1017 (KLR)

Employment and Labour Relations Court
26 July 2019
6,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped the IEBC's CEO recruitment because the process had an unmanaged conflict of interest and no fair, objective shortlisting criteria.

What this practically means

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Executive summary

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The petitioner, Katiba Institute, moved the Employment and Labour Relations Court by a notice of motion dated 21.06.2019 seeking to stop the IEBC's ongoing recruitment of a Commission Secretary/Chief Executive Officer advertised under Ref. V. No/IEBC/C/CEO/1/2019, and the interviews of ten shortlisted candidates scheduled for 24th to 26th June 2019. The petitioner argued that the recruitment was shrouded in secrecy, lacked an independent consultant, was tainted by the conflict of interest of the Acting Commission Secretary/CEO Marjan Hussein Marjan who was himself an applicant, and that shortlisting was not done on a transparent, predetermined criterion. The respondents maintained that section 10 of the IEBC Act vests the appointment in the Commission, that the use of a consultant is discretionary, that names of applicants and shortlisted candidates were published in the print media, and that the injunction test was not met. The Court held that the Commission may recruit its secretary without a consultant but remains fully responsible for the process; that the acting secretary's conflict of interest was real, belatedly declared and ineffectively managed, and that he misled the plenary on the consultant ACAL's concerns; and that the shortlisting was unlawful for want of a predetermined objective score sheet and for excluding candidates with statutory qualifications using non-statutory criteria. The Court found a prima facie case with high chances of success and granted interim orders stopping the recruitment, while granting the respondents liberty to set aside the shortlisting and proceed lawfully on an objective score sheet, with liberty to engage a consultant. Costs were awarded in the cause and the petition was prioritised for hearing.

Key legal issues

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01

Mandatory engagement of an independent recruitment consultant

Holding

Not mandatory; the IEBC may recruit internally but remains responsible and accountable throughout

Reasoning

Section 10(1) IEBC Act vests the appointment in the Commission, and clause 4.5.1.9 of the HR Manual makes consultants discretionary. However, the Court considered engagement of an independent consultant highly desirable given the professionalism, transparency and conflict-of-interest management needed for so crucial an office.

p. 5
02

Conflict of interest of the Acting Commission Secretary/CEO

Holding

Established; his belated declaration of interest and continued involvement invalidated the internal process

Reasoning

The acting secretary facilitated the advertisement, receipt and processing of applications, declared his interest only at the 07.06.2019 meeting, misled the plenary on ACAL's conflict-of-interest concerns, and no effective management measures were put in place. The regulation 11 exceptions to the conflict rules were not established.

p. 5
03

Shortlisting criteria

Holding

Unlawful for want of a predetermined objective score sheet and for knocking out candidates with statutory qualifications using non-statutory criteria

Reasoning

Candidates meeting the section 10(2) statutory requirements were dropped in priority to a master's degree which was never a statutory requirement, and the required experience was not disclosed or scored. Objective, predetermined score sheets for both shortlisting and interviews were held mandatory under Articles 10, 232(1)(g)-(i), 73(2)(a) and section 10(2).

p. 6
04

Court's intervention in employer prerogatives

Holding

Prima facie case established because the process was continuing in violation of constitutional and statutory provisions

Reasoning

While courts sparingly intervene in human resource functions, the petitioner demonstrated violations: unmanaged conflict of interest and absence of objective predetermined criteria. Damages could not cure the injury and the balance of convenience favoured temporarily arresting the unlawful process.

p. 7

Legal principles established

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  • A public employer may conduct its own recruitment without an independent consultant, but any consultant engaged does not displace the employer's responsibility and accountability for the appointment process
  • A conflict of interest in public recruitment is managed through timely declaration of interest, disqualification and remedial measures, not merely avoidance
  • Shortlisting and interviews in public appointments must be guided by a predetermined, objective score-sheet anchored on statutory qualifications and constitutional values; statutory minimum qualifications cannot be displaced by non-statutory 'added advantage' criteria
  • Courts interfere sparingly with an employer's human resource functions, and only where the process contravenes the Constitution or legislation, breaches an agreement, or is manifestly unfair

Court orders

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  1. 1.An order stopping the on-going recruitment process for the position of Commission Secretary and Chief Executive Officer and the interviewing of the ten shortlisted candidates, pending hearing and determination of the petition
  2. 2.Liberty granted to the respondents to set aside the shortlisting and proceed in accordance with the law upon a predetermined and objective score-sheet, devoid of conflict of interest, with liberty to involve a lawfully appointed independent consultant
  3. 3.The parties to take steps towards the hearing and determination of the petition on priority basis
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 22, 23, 24, 35, 73(2)(a), 88, 232(1)(g), (h), (i), 249, 250(1), 250(12), 262; section 23(1) of the Sixth Schedule
  • Independent Electoral and Boundaries Commission Act, 2011sections 10(1), 10(2), 27(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rules 23(1), 23(2), 24(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rules 7(1), 28
  • Public Officer Ethics Act, 2003sections 12, 22
  • Public Officer Ethics Regulations, 2003regulation 11
  • Public Procurement and Asset Disposal Act, 2015section 56
  • Employment Actnot specified
  • Independent Electoral and Boundaries Commission Human Resource and Administration Policies and Procedures Manual, 2010clause 4.5.1.9

Cases cited (5)

  • Robert Muriithi Ndegwa –Versus- Minister for Tourism
    Petition No. 41 of 2012
  • Teachers Service Commission –Versus- Kenya National Union of Teachers (KNUT) and Another
    [2019]eKLR
  • Lempaa Vincent Suyianka –Versus- Commission on Administrative Justice Selection Panel & Another
    [2018]eKLR
  • Alfred Nyungu Kimungui Vs Bomas of Kenya
    [2013]eKLR
  • Geoffrey Mworia-Versus-Water Resources Management Authority and 2 others
    [2015]eKLR
Jurisdiction invoked
Articles 19, 20, 22, 23, 24, 35, 262 of the Constitution and section 23(1) of the Sixth Schedule; rule 23(1), (2) and rule 24(1) of the Mutunga Rules; rules 7(1) and 28 of the ELRC (Procedure) Rules 2016

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, "Chama Cha Mawakili (CCM) v Chairperson Independent Electoral and Boundaries Commission & 2 others [2019] KEELRC 1017 (KLR)", Case Analysis (2019). Petition ELRC No. 51 of 2019 (Notice of Motion dated 21.06.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1017/eng@2019-07-26

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