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ELRCPartially AllowedPetition No 173 of 2019· [2020] KEELRC 440 (KLR)

Union of Kenya Civil Servants v Cabinet Secretary, Ministry of East African Community & Regional Development & 4 others;Tana & Athi Rivers Development Authority (Interested Party) [2020] KEELRC 440 (KLR)

Employment and Labour Relations Court
25 September 2020
RSRadido Stephen
2,819 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court voided a state authority boss's appointment for skipping competitive recruitment, altering his birth records, and hiring relatives.

What this practically means

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Executive summary

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The Union of Kenya Civil Servants petitioned against the appointment and renewal of contract of Steven Githaiga Ruimuku as Managing Director of the Tana & Athi Rivers Development Authority, alleging the appointment was irregular, unlawful and made without due process, and that the 4th Respondent lacked integrity. The Respondents raised a preliminary competence objection that annexures to the Union's affidavits were unmarked contrary to Rule 9 of the Oaths and Statutory Declarations Rules. Applying the Court of Appeal's decision in Zaheer Jhanda, the Court expunged the unmarked annexures but retained properly sealed documents. On the merits, the Court found on documentary evidence (immigration reports, identity and passport records, Auditor General and National Assembly reports) that the 4th Respondent had altered his names and date of birth to avoid retirement, breaching Article 232 values of accountability and transparency. It further found he caused the employment of about 41 relatives, contrary to the constitutional values and the Leadership and Integrity Act and Public Officer Ethics Act. On the appointment itself, the Court held that despite sections 5(3) and 10 of the State Corporations Act, the recruitment was not subjected to competition, merit or public participation as required by Articles 10 and 232, rendering the initial appointment a nullity and the 2018 renewal unsustainable. The Court declared the appointment null and void, declared the 4th Respondent to have failed the integrity test to hold public office, and directed the Interested Party to immediately commence recruiting a Managing Director. The Union's request for costs was denied for failing to identify issues concisely. Judgment delivered on 25 September 2020 by Radido Stephen, Judge.

Key legal issues

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01

Competence of the Petition - unmarked annexures

Holding

The Court expunged unmarked annexures but considered properly sealed/marked documents, including annexure OL 1 and the sealed documents in the Supplementary Affidavit

Reasoning

Rule 9 of the Oaths and Statutory Declarations Rules requires annexures to be sealed and stamped to prevent mischief of litigants sneaking in documents. The Court of Appeal in Zaheer Jhanda affirmed expungement of unmarked annexures. Official provenance of a document does not excuse non-compliance, and the Court found the mischief had occurred here, including a marriage certificate introduced through submissions. Bound by that authority, the Court expunged the offending annexures but admitted properly marked documents.

p. 3
02

Integrity - alteration of names and date of birth

Holding

The 4th Respondent was found to have altered his birth records, violating the constitutional values of accountability and transparency under Article 232

Reasoning

Based on passport, identity card, immigration reports, marriage certificate and Auditor General records, the Court found Steven Maina Githaiga and Steven Githaiga Ruimuku were one and the same person and that the 4th Respondent caused his birth records to be altered. Though not a state officer under Article 73, he was a public officer subject to Chapter Thirteen values, and he stood to benefit from the alteration.

p. 4
03

Nepotism

Holding

The 4th Respondent breached the values and principles of public service and the code of conduct by causing the Authority to employ relatives

Reasoning

The Union alleged the employment of about 41 relatives. Beyond a general denial and an assertion that the matter was under investigation, the 4th Respondent did not rebut the allegations. The Auditor General's report for the financial year ended 2015 found irregular employment of staff from a particular region in breach of Treasury Circular No. 9/2013. Section 17 of the Public Officer Ethics Act and Section 13 of the Leadership and Integrity Act were cited as giving content to the constitutional prohibition on nepotism.

p. 4
04

Legality of the appointment and renewal without competitive recruitment

Holding

The appointment and the renewal of contract were nullities for breaching the constitutional values of competition, merit, fairness and openness in public appointments

Reasoning

Although sections 5(3) and 10(1) & (2) of the State Corporations Act permitted engagement of staff, Article 232 requires competition and merit as the basis of appointments. The Respondents produced no evidence of public participation, competition or merit in the April 2015 recruitment; the Board and Cabinet Secretary acted subjectively. The 2018 renewal, founded on the flawed initial appointment, could not stand.

p. 5

Legal principles established

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  • Annexures to affidavits must be sealed/marked as required by Rule 9 of the Oaths and Statutory Declarations Rules; unmarked annexures may be expunged even if from official sources
  • Public officers, including non-state officers, are bound by the values and principles of public service under Chapter Thirteen of the Constitution
  • Appointment to public office must adhere to competition, merit and other values under Article 232; appointment without these is a nullity

Court orders

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  1. 1.A declaration that the appointment of the 4th Respondent Steven Githaiga Ruimuku as Managing Director of Tana & Athi Rivers Development Authority is/was null and void
  2. 2.A declaration that the 4th Respondent Steven Githaiga Ruimuku failed the integrity test to hold public office
  3. 3.The Interested Party to immediately commence the process of recruiting a Managing Director as by law mandated
  4. 4.Costs denied to the Union

Authorities

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Legislation

  • Oaths and Statutory Declarations Act (Rules)Rule 9 of the Oaths and Statutory Declarations Rules
  • Evidence Actsection 60(1)(b) & (f)
  • Constitution of Kenya, 2010Articles 10, 73(1)(a)(i),(iii),(iv) & (2)(c)(i), 232
  • Births and Deaths Registration Actsection 26
  • Leadership and Integrity Act, 2012section 13
  • Public Officer Ethics ActPart III, section 17
  • State Corporations Actsections 5(3), 10(1) & (2)
  • Employment Act, 2007section 5(1)
  • Treasury Circular No. 9/2013of 26 July 2013

Cases cited (2)

  • Abraham Mwangi v S.O. Omboo & Ors
    (2003) eKLR
  • Zaheer Jhanda & Ar v I.E.B.C. & Ors
    (2018) eKLR
Jurisdiction invoked
Not expressly stated; original constitutional petition jurisdiction (petition alleging unconstitutional public appointment, Chapter Thirteen values and principles of public service)

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, "Union of Kenya Civil Servants v Cabinet Secretary, Ministry of East African Community & Regional Development & 4 others;Tana & Athi Rivers Development Authority (Interested Party) [2020] KEELRC 440 (KLR)", Case Analysis (2020). Petition No 173 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/440/eng@2020-09-25

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