Law Society of kenya v Cabinet Secretary for Tourism And Wildlife, Tourism Regulatory Authority Board & Attorney General; Kevin Muasya, Alais Lenana Momoi, Isaac Muchiri Njangu, Pauline Njoroge & Najma Ismael (Interested Parties) (Petition 129 of 2020) (Employment and Labour) [2020] KEELRC 295 (KLR)
The bottom line
#Kenya's Employment Court suspended appointments to the Tourism Regulatory Authority Board because the government couldn't prove it followed the required recruitment process.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over appointments to the Tourism Regulatory Authority Board
The Court found it has jurisdiction because the appointments are remunerative, presuming an employment relationship.
The Court traced its jurisdiction to Article 162(2)(a) and Section 12 of the Employment and Labour Relations Act. Relying on Abdikadir Suleiman v County Government of Isiolo, it held that the Court handles all matters relating to employment including enforcement of fundamental rights under Articles 22 and 258. Since the board appointments are remunerative from public coffers, an employment aspect is presumed, and the Respondents' jurisdictional objection failed.
Whether conservatory/interim injunctive orders should issue pending the Petition
The Court confirmed the interim orders suspending the Gazette Notice, finding arguable issues and the balance of probability in the Applicant's favour.
Applying the prima facie case threshold, the Court noted the Respondent did not demonstrate how Section 8 of the Tourism Act was adhered to, and the Interested Parties' qualifications remained unestablished. It found it absurd to let the appointees continue serving unresolved, and that granting the orders would preserve the substratum of the Petition, which might otherwise be destroyed.
Compliance with Section 8 of the Tourism Act in the recruitment process
Compliance was not demonstrated; the manner of appointment and the appointees' qualifications remain to be established.
The Applicant alleged the appointments bypassed open, competitive, merit-based recruitment, public participation, and parliamentary approval. The Respondents relied on the repealed/deleted provisions and the lex specialis principle but did not show adherence to the operative statutory process. This gap supported the existence of arguable issues fit for trial.
Legal principles established
#- The ELRC has jurisdiction over matters relating to appointments to public office where the appointment is remunerative, as remuneration presumes an employment aspect.
- Where a respondent in an interlocutory application has not demonstrated compliance with the statutory scheme governing appointments, arguable issues arise warranting interim relief.
Court orders
#- 1.Interim orders suspending the Gazette Notice Vol CXXII - NO. 150 No. 5462 dated 7/8/2020 appointing the Interested Parties as members of the Tourism Regulatory Board confirmed, pending the hearing and determination of the Petition.
- 2.Costs reserved to the Petition (costs in the Petition).
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of kenya v Cabinet Secretary for Tourism And Wildlife, Tourism Regulatory Authority Board & Attorney General; Kevin Muasya, Alais Lenana Momoi, Isaac Muchiri Njangu, Pauline Njoroge & Najma Ismael (Interested Parties) (Petition 129 of 2020) (Employment and Labour) [2020] KEELRC 295 (KLR)", Case Analysis (2020). Petition (E&LRC) with Notice of Motion dated 11/8/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/295/eng@2020-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.