Hassan Willy Lesupen & 3 others v National Government Constituencies Development Fund (NG-CDF) Board & another; Samuel Kiprotich Burgei & 7 others (Interested Parties) [2020] KEELRC 862 (KLR)
The bottom line
#Kenya's Employment Court quashed Baringo South NG-CDF committee appointments because they ignored ethnic, gender and regional balance rules and brushed aside a pending complaint.
What this practically means
#Executive summary
#Key legal issues
#Whether the composition of the Fund Committee complied with Articles 10, 56 and 232 and Regulation 5(6) on diversity, marginalised communities and regional balance
It did not; seven of eight members came from two wards and one community (the Tugen), with only one Ilchamus member, failing inclusiveness and regional balance.
The court found the evidence that Baringo South has four wards but seven of eight appointees came from Marigat and Mochongoi wards and were of the Tugen community, with only one Ilchamus member, unchallenged. The 1st respondent set the selection criteria under section 43 of the Act and its regulations requiring age, gender, special interest groups and regional balance to be considered, yet did not demonstrate adherence to them in its response, shifting the burden of proof to it and establishing breach of Articles 10, 56 and 232.
Whether the 1st respondent breached Article 47 in handling the petitioners' complaint
Yes; it summarily dismissed the complaint and proceeded to gazettement while the dispute was pending.
The petitioners lodged a complaint on 23rd December 2019. The 1st respondent dismissed it summarily by letter dated 6th January 2020 and, despite a court order of 24th December 2019 finding the selection illegal, proceeded to have the list approved and gazetted. The court held that addressing the complaint on the merits was required and that forwarding the contested list to the National Assembly while the complaint was pending violated Article 47, rendering the subsequent publication null and void.
Whether the 1st respondent could disclaim responsibility for the 2nd respondent's selection exercise
No; the selection panel acts on delegated mandate and the Board must ensure compliance.
The court read sections 43(2) and (3) of the Act as placing on the Board the duty to ensure that persons forwarded for approval and gazettement meet constitutional and statutory thresholds. The Board had issued guidelines to Fund Account Managers and set eligibility criteria, showing primary mandate rested with it. Its claim that Regulation 5(6) gave the selection panel autonomy and that it was functus officio after National Assembly approval did not relieve it of the duty to ensure the criteria were adhered to.
Whether failure to plead cancellation of the gazettement defeated the petition
No; the appointment was a product of illegality and the gazettement fell with it.
The 1st respondent argued there was no prayer for cancellation of the gazettement. The court held this was no defence because the Board gazetted the members with knowledge of the pending complaint and of the court order of 24th December 2019 declaring the selection illegal; proceeding without due process meant the publication was born of illegality and could not stand.
Legal principles established
#- The appointing authority (the CDF Board) bears the ultimate statutory responsibility for ensuring that constituency Fund Committee selections meet the constitutional and statutory thresholds, and cannot disclaim oversight of the selection panel's delegated mandate.
- A public body must address a complaint lodged with it on the merits before proceeding; processing appointments while a complaint is pending violates Article 47.
- Regional balance, gender, special interest groups and inclusion of marginalised communities are mandatory considerations in public appointments under Articles 10, 56 and 232 read with the governing regulations.
Court orders
#- 1.A Declaration that the selection, nomination, co-option and appointment of the interested parties by the 1st respondent to the NG-CDF Committee for Baringo South Constituency was in breach of the Constitution, 2010 and is therefore null and void
- 2.The appointment of the interested parties as submitted to the National Assembly and published in Kenya Gazette Notice No.49 of 2020 dated 30th December, 2019 is quashed and thus revoked
- 3.Petitioners awarded costs
- Jurisdiction invoked
- Articles 10, 47, 56 and 232 of the Constitution of Kenya, 2010; jurisdiction of the Employment and Labour Relations Court over the petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Willy Lesupen & 3 others v National Government Constituencies Development Fund (NG-CDF) Board & another; Samuel Kiprotich Burgei & 7 others (Interested Parties) [2020] KEELRC 862 (KLR)", Case Analysis (2020). Petition No. 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/862/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.