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ELRCDismissedPetition No. 108 of 2019 (Consolidated with Petition No. 130 of 2019)· [2020] KEELRC 931 (KLR)

Kelvin Maina v Attorney General & 2 others; James Gathii Mburu (Interested Party) [2020] KEELRC 931 (KLR)

Employment & Labour Relations Court
21 May 2020
HWHellen S. Wasilwa
3,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed a challenge to the KRA Commissioner-General's appointment, ruling that evidence of merit must accompany claims of ethnic bias.

What this practically means

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Executive summary

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Two consolidated petitions (No. 108 of 2019 filed in the Employment & Labour Relations Court and No. 130 of 2019 transferred from the High Court) challenged the appointment of James Githii Mburu as Commissioner General of the Kenya Revenue Authority by Gazette Notice No. 4857 of 4th June 2019, and its juxtaposition with the President's reappointment of Dr. Patrick Ngugi Njoroge as Governor of the Central Bank of Kenya. The petitioners, acting in the public interest under Articles 22, 23(1) and 258(1) of the Constitution, alleged that the appointments were ethnically skewed in favour of the Kikuyu community, that the office of Commissioner General had been occupied exclusively by Kikuyu men since 2001, and that the process violated Articles 2, 3, 10, 27, 47, 73 and 232. They sought declarations of nullity, certiorari to quash the Gazette Notice, and orders restraining further appointments or compelling a fresh appointment. The respondents and KRA defended the process as open, competitive and merit-based, contending the petitioners had not pleaded violations with the precision required by the Annarita Karimi line of authority. The interested party did not enter appearance. Justice Wasilwa framed two issues: whether constitutional infringements occurred, and whether the petitioners were entitled to remedies. She acknowledged the historical ethnic pattern at KRA and the absence of women and persons with disabilities in the office, but held that the petitioners failed to prove the Interested Party was appointed on the basis of ethnicity or was less qualified than other contenders. The appointment was found to have followed an advertised, competitive, merit-based process. The court declined to quash the appointment, dismissed both petitions, and made no order as to costs. Judgment was delivered in chambers via zoom on 21st May 2020.

Key legal issues

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01

Whether the appointment of James Githii Mburu as Commissioner General of KRA violated Articles 10, 27 and 232 of the Constitution on ethnic and gender representation

Holding

No violation established; the appointment followed an open, competitive and merit-based process

Reasoning

The court accepted that KRA had been headed by men from one ethnic group since 2001 and never by a woman, but held that historical pattern alone does not prove the impugned appointment was made on ethnic grounds. The process involved advertisement, shortlisting and interviews, and the Board recommended the Interested Party on merit. No evidence showed he was less qualified than candidates of other ethnicities.

p. 5
02

Whether the petitioners established a constitutional violation with sufficient precision

Holding

The petitioners failed to discharge the burden of proof

Reasoning

Citing the Annarita Karimi threshold raised by the respondents and the court's own analysis, the court held that a petitioner alleging constitutional infringement must establish it. The petitioner did not address the non-competitiveness of the Interested Party, which was essential to proving the appointment offended the merit and diversity values in Article 232.

p. 6

Legal principles established

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  • A petitioner alleging unconstitutionality of a public appointment on ethnic grounds must prove the appointee was appointed solely on the basis of tribe and lacked requisite qualifications
  • In public appointments there must be a balance between competence and competitiveness while achieving regional balance

Court orders

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  1. 1.The Petition is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 3(2), 10, 22, 23(1), 258(1), 27, 35, 47, 73, 129, 130(1), 232(1)(d),(g),(h),(i) & 2(a),(b)
  • Central Bank of Kenya ActSection 13(2)
  • National Cohesion and Integration ActNo. 12 of 2008 (as cited)
  • Public Service (Values and Principles) ActNo. 1A of 2015 (as cited)

Cases cited (4)

  • Annarita Karimi Njeru v Republic
  • Marilyn Muthoni Kamuru & 2 others v Attorney General & another
    [2016] eKLR
  • Community Advocacy & Awareness & 8 Others v the Attorney General, Interested Party National Gender & Equality Commission and 5 Others
    (2012) eKLR
  • Jayne Mati & Another v the Attorney General
    Nairobi Petition No. 108 of 2011 (unreported)
Jurisdiction invoked
Article 258(1) as read with Articles 22 and 23(1) of the Constitution

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, "Kelvin Maina v Attorney General & 2 others; James Gathii Mburu (Interested Party) [2020] KEELRC 931 (KLR)", Case Analysis (2020). Petition No. 108 of 2019 (Consolidated with Petition No. 130 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/931/eng@2020-05-21

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