Dwasi v Cabinet Secretary for Environment and Natural Resources & another (Petition 35 of 2017) [2019] KEELRC 2562 (KLR)

Section 125(1)(a) of EMCA vested the nomination of the NET chairperson in the JSC, with the respondent's role limited to gazettement and appointment. The JSC maintained, and the respondent's conduct in purporting to reject the nominee on September 25, 2017 and October 13, 2017 usurped the nominating body's mandate. The judgment records the precedent that where one body nominates and another gazettes, the latter's role is merely facilitative. However, the court did not make a final determination because subsequent events rendered the application spent.

The applicant submitted that the respondent failed to notify her of the decision to refuse gazettement, contrary to article 47(1) of the Constitution and section 4(1) of the Fair Administrative Action Act, and alleged bias and tribal/nepotistic influence by the Principal Secretary. The respondent's role was instead said to have usurped the JSC's mandate. The court made no express finding on these complaints, as the application was overtaken by events, including the lapse of the interim appointment and amendment of section 125 of EMCA.

The court noted that the one-year interim appointment had lapsed on September 14, 2018; that the Statute Law (Miscellaneous Amendment) Act, 2018 had amended section 125(5) of EMCA so that the JSC no longer nominates the chairperson; and that its ruling of March 2, 2018 had appointed the applicant in a transitory capacity pending recruitment of her successor. In these circumstances the mandamus orders sought were superfuous and incapable of being granted, and the application was declared spent.