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ELRCPartially AllowedPetition (number not stated in judgment)· [2020] KEELRC 165 (KLR)

Legeus Lomosi Mudegu v Board, Kenya Water Towers Agency [2020] KEELRC 165 (KLR)

Employment and Labour Relations Court
25 November 2020
RSRadido Stephen
1,522 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 cancelled a state agency's CEO recruitment because the public was never invited to comment on the candidates.

What this practically means

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Executive summary

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The Petitioner moved the Employment and Labour Relations Court alleging that the Kenya Water Towers Agency's fresh recruitment of a Chief Executive Officer, conducted pursuant to a consent order in Petition No. 177 of 2019 (which had quashed an earlier advertisement), violated the law. He complained that the public was not invited to give views on the shortlisted applicants, no female applicant was shortlisted, COVID-19 protocols were disregarded, PhD holders were not shortlisted, and applications were made to an ad hoc committee contrary to the Mwongozo Guidelines. The Respondent accepted that the process was subject to the Constitution, the Kenya Water Towers Act and the Mwongozo Code, and that public participation was essential, but argued that advertising the position, publishing applicants' and shortlisted names and interview dates constituted adequate participation, whose level and form could vary from case to case. The Court framed three issues: lawfulness of the recruitment, entitlement to reliefs, and costs. It held that the failure to invite public views on the integrity and suitability of shortlisted applicants breached Article 10(2)(a) & (c), since natural justice requires applicants to confront public concerns at interview stage. However, the delegation to an ad hoc committee was lawful, as delegation does not amount to abdication. The Court declared the recruitment invalid, null and void, ordered a fresh recruitment with public participation, and, as public interest litigation, ordered each party to bear its own costs. Judgment delivered at Kisumu on 25 November 2020 by Radido Stephen, Judge.

Key legal issues

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01

Whether the recruitment of the Chief Executive Officer satisfied the constitutional requirement of public participation under Article 10

Holding

The recruitment process failed the public participation threshold and was declared invalid, null and void.

Reasoning

Although the Respondent advertised the position, published applicants' and shortlisted names and interview dates, the re-advert did not invite members of the public to submit views on the integrity and suitability of shortlisted applicants. The Court held natural justice requires applicants be confronted with public concerns at interview stage to respond before the panel decides. Publishing names alone was legally deficient, breaching Article 10(2)(a) & (c).

p. 3
02

Whether delegation of shortlisting to an ad hoc committee of the Board was ultra vires

Holding

No violation; delegation is lawful and the Board may adopt or ratify committee recommendations.

Reasoning

The Court held that delegating a power does not mean washing hands off it. Public sector Boards routinely constitute committees to perform functions on their behalf, after which the Board adopts or ratifies the recommendations. The Petitioner's claim that the Board usurped the ad hoc committee's powers failed on this basis.

p. 3

Legal principles established

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  • Natural justice requires that applicants for public office be confronted with public concerns at the interview stage so they can respond before the recruitment panel decides on suitability.
  • Failure to invite the public to submit views on candidates for public office breaches the public participation requirement of Article 10(2)(a) & (c) of the Constitution.

Court orders

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  1. 1.A declaration issued that the recruitment process for the position of Chief Executive Officer by the Respondent did not meet the Constitutional threshold of public participation and is therefore invalid, null and void
  2. 2.The Respondent to commence recruitment for the position of Chief Executive Officer in conformity with the applicable laws and with public participation
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2)(a) & (c)
  • Constitution of Kenya, 2010Article 73
  • Constitution of Kenya, 2010Article 81
  • Kenya Water Towers Act
  • Mwongozo Guidelines (Mwongozo Code)

Cases cited (2)

  • Minister for Health v New Clicks (Pty) Ltd & Ors
    (2005) ZACC 14
  • Peter Kyalo v Alfred Mutua
    (2018) eKLR
Jurisdiction invoked
Article 10, 73 and 81 of the Constitution; recruitment to the public office of Chief Executive Officer of the Kenya Water Towers Agency (constitutional petition)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Legeus Lomosi Mudegu v Board, Kenya Water Towers Agency [2020] KEELRC 165 (KLR)", Case Analysis (2020). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/165/eng@2020-11-25

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