Commission for Human Rights & Justice v Board of Directors, Kenya Ports Authority & 2 others; Dock Workers Union(Interested Party) [2020] KEELRC 552 (KLR)
The bottom line
#Kenya's Employment Court ruled KPA's Managing Director recruitment was valid, finding advertising, stakeholder engagement and vetting satisfied public participation requirements.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court over the KPA Board's recruitment process.
The Court has jurisdiction under Article 162(2)(a); it adopts Benson Riitho Mureithi and assumes jurisdiction in the absence of any other adjudicatory mechanism.
The KPA Act, State Corporations Act and Mwongozo Code contain no mechanism for resolving allegations of non-compliance with constitutional Articles in a Managing Director recruitment. State Corporation Boards are not adjudicatory platforms, so persons with disputes cannot be faulted for approaching the Court. Jurisdiction was affirmed on the authority of Republic v. Karisa Chengo, Mugendi v. Kenyatta University and USIU v. Attorney-General. The separation-of-powers objection and the reference to the State Corporations Advisory Committee were rejected.
Whether the recruitment process violated the public participation requirement under Article 10 (read with Articles 73 and 232).
No violation. The Respondents satisfied the requirement using reasonable means; the process is technocratic and the level of participation required for appointments differs from legislative processes.
Drawing on Arnstein's ladder of citizen participation, the Court found the Respondents offered degrees of tokenism (informing and consultation) rather than nonparticipation. The vacancy was advertised in print and online media; the Board represents stakeholders; the Interested Party (union representing employees) confirmed it had been informed and endorsed the process; and public watchdogs (DCI, EACC, KRA, CRB) vet candidates. Applying the BAT Kenya decision, absence of a Public Participation Act is no excuse, but reasonable means were used. Televised interviews add no value.
Whether the Board has lost public trust and failed its oversight role under Article 73.
No evidence was provided to establish failure of oversight or loss of public trust; bare allegations are insufficient.
No audit report or report from the General Inspector of State Corporations, EACC or DCI implicating the Board was exhibited. Newspaper cuttings lack probative value without supporting affidavits. It is not the Court's role to disband a Board; investigative agencies must first be engaged. Further, there is no prayer in the main Petition for reconstitution of the Board.
Whether the Petitioner's Article 35 right of access to information was violated by the 1st Respondent's silence.
There was an obligation to grant the list of applicants or reply with reasons, but the Petitioner bypassed the statutory review mechanism under the Access to Information Act, making the resort to Court premature.
Article 35 is given effect by the Access to Information Act No. 31 of 2016, which requires decisions on requests within 21 days and communication within 15 working days, with review by the Commission on Administrative Justice. The 1st Respondent's stonewalling was unsatisfactorily explained and its silence should have been understood as refusal. The Petitioner did not seek recourse under the Act, hence premature. The Court distinguishes Katiba Institute from Nairobi Law Monthly on the limits of the right.
Legal principles established
#- Courts may intervene where the exercise of discretion by State Corporation Boards is shown or suspected of failing to adhere to the law; Boards are not adjudicatory platforms.
- In the absence of a Public Participation Act, the onus is on the entity to give effect to public participation using reasonable means; stakeholder representation and stakeholder engagement may suffice for technocratic appointments.
- Appointment of Managing Directors of State Corporations is a technocratic, not a fully democratic, decision-making process which need not open itself to the scrutiny of every person.
- Section 42(2) of the Employment Act governs probationary contracts, not acting appointments; acting capacity and probation are distinguishable concepts.
- Where a request for information under Article 35 is refused, the statutory review avenue under the Access to Information Act (Commission on Administrative Justice) must first be exhausted before resorting to the Court.
Court orders
#- 1.The Petition is declined.
- 2.The Respondents are at liberty to continue with the recruitment process.
- 3.No order of costs.
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commission for Human Rights & Justice v Board of Directors, Kenya Ports Authority & 2 others; Dock Workers Union(Interested Party) [2020] KEELRC 552 (KLR)", Case Analysis (2020). Petition (E&LRC, Mombasa), filed 7th May 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/552/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.