Republic v Cabinet Secretary, Ministry of East African Community and Regional Development; Ewaso Ng’iro North Development Authority & another (Interested Parties) Exparte Omar Mohammed Sheikh [2019] KEELRC 2111 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a state agency CEO cannot rely on board recommendations or circulars to claim a third term when the law caps tenure at two.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's decision to appoint an Acting Managing Director instead of reappointing the applicant was lawful
The decision was lawful and regular; the Cabinet Secretary had discretion under the ENNDA Act and the applicant had already served the maximum two-term limit
The Court examined section 4 of Cap 448 and the Mwongozo Code and noted the two-term (six-year) limit for board members, including the Managing Director who is a member of the Board. The appointment letter lacked a renewal clause and the applicant had served two terms. The Respondent's considerations were neither unreasonable nor irrelevant; moreover the 2nd Interested Party was only appointed in an acting capacity and the substantive position remains unfilled.
Whether the applicant had a legitimate expectation of reappointment for a third term
No breach of legitimate expectation; the applicant did not set out any legal basis for a third term
The applicant relied on Head of Public Service circulars and the Board's evaluation report and recommendation. The Court applied the Supreme Court's holding in Communications Commission of Kenya v Royal Media Services that no legitimate expectation can override clear statutory provisions. Since the applicant identified no legal foundation for a third term, the expectation could not stand against the statutory scheme and the term limits in the governance instruments.
Whether the applicant was entitled to the judicial review orders of certiorari and mandamus
Not entitled; he failed to demonstrate grounds for judicial review intervention
The Court restated the limited scope of judicial review intervention: arbitrariness, capriciousness, bad faith, misconceived discretion, irrelevant or ignored relevant considerations, or gross unreasonableness evidencing failure to apply the mind. The applicant proved none of these. The decision was regular, the two-term limit was a relevant consideration, and the appointment of the 2nd Interested Party was acting only.
Legal principles established
#- No legitimate expectation can override clear statutory provisions
- Judicial intervention in judicial review matters is limited to decisions arrived at arbitrarily, capriciously, mala fide, on irrelevant considerations or so grossly unreasonably as to show failure to apply the mind
Court orders
#- 1.The Chamber Summons application seeking leave and the judicial review application are dismissed in whole
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court over matters relating to employment and labour, including orders of certiorari and mandamus against a state organ
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary, Ministry of East African Community and Regional Development; Ewaso Ng’iro North Development Authority & another (Interested Parties) Exparte Omar Mohammed Sheikh [2019] KEELRC 2111 (KLR)", Case Analysis (2019). Judicial Review No 34 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2111/eng@2019-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.