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ELRCPartially AllowedConsolidated Petitions Nos. 190 of 2019 and 193 of 2019 (Petition 190 of 2019 as lead)· [2020] KEELRC 1886 (KLR)

Kenya Young Parliamentarians Association & 2 others v Cabinet Secretary Labour & Social Protection & 3 others; Institute of Human Resource Management & another (Interested parties) [2020] KEELRC 1886 (KLR)

High Court of Kenya (Constitutional and Human Rights Division)
17 January 2020
OMOnesmus N Makau
7,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed the appointment of the National Employment Authority chairperson because she lacked the required qualifications and got the job without fair competition.

What this practically means

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Executive summary

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Two petitions, consolidated under Petition No. 190 of 2019 by consent, challenged the appointment of Ms Mary Wambui Munene as Chairperson of the National Employment Authority by the Cabinet Secretary for Labour and Social Protection vide Gazette Notice published on 14th October, 2019. The petitioners contended that she lacked the seven years' experience in human resource management required by section 10(2)(c) of the NEA Act and that her handpicked appointment breached Articles 10, 73(2) and 232 of the Constitution and section 10 of the Public Service (Values and Principles) Act. The Institute of Human Resource Management, joined as Interested Party, confirmed she was not a registered HR professional. The respondents argued that the Act required only experience, not certification, and that her CV demonstrated the requisite experience. The court held that her CV disclosed no evidence of HR management experience or its equivalent, rendering her unqualified and lacking the competence and suitability demanded by Chapter Six. It further found the recruitment process flawed because the Cabinet Secretary failed to prove a competitive, merit-based process or a mechanism for public interrogation of the appointee's integrity and competence, and declined to avail the requested recruitment information. However, the court held that the Article 35 right of access to information is available only to natural-person citizens, not to the petitioner NGO and company, and therefore refused the declarations and damages sought on that head. The court quashed the Gazette Notice, permanently restrained Ms Wambui from assuming office (or directed her to vacate if she had), directed strict compliance with constitutional and statutory requirements in future appointments, and declined to award costs owing to the public interest nature of the proceedings.

Key legal issues

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01

Qualification of the appointee under section 10(2) of the NEA Act

Holding

Ms Wambui does not possess seven years' experience in human resource management or its equivalent and is therefore unqualified under section 10(2)(c) of the NEA Act and lacks the competence required under Article 73(2)

Reasoning

The court examined the appointee's CV filed by the Principal Secretary, which showed roles as a one-term MP, director, administrator/co-ordinator and secretary at Maendeleo ya Wanawake, but found no evidence of managerial or operative HR functions for seven years. Section 10(2) requires seven years' experience in HR management or its equivalent; although certification under the HR Management Professionals Act is not required, such experience must be exhibited, not assumed. Lacking it, she is incompetent and unsuitable under Chapter Six.

p. 7
02

Flawed recruitment process

Holding

The appointment process was flawed and in breach of the Constitution and statutes because the 1st respondent did not prove a competitive, merit-based process or a mechanism for public interrogation of integrity and competence

Reasoning

The NEA Act does not prescribe a recruitment process for the Board, but public appointments must follow Article 10, 232, Article 73(2) and section 10 of the Public Service (Values and Principles) Act requiring fair competition and merit. The respondents failed to avail the requested information on applicants, scores and evaluation up to the conclusion of the hearing, and the Cabinet Secretary could not prove competitive appointment or public participation in interrogating the appointee's integrity and competence.

03

Right of access to information under Article 35

Holding

The right under Article 35(1) is confined to natural-person citizens; the petitioners, being an NGO and a limited liability company, cannot claim it, so no violation was established

Reasoning

Relying on precedents holding that a body corporate is not a citizen for purposes of Article 35(1), the court held that juridical persons are excluded from the Article 35 right. Although the respondents failed to provide the requested recruitment information, no violation of the petitioners' right was made out because they lack capacity to enjoy that right.

p. 9
04

Whether the Chairperson role is merely ceremonial such that professional qualifications are unnecessary

Holding

Rejected: the Chairperson provides leadership to the board and the specialised Authority, so competence thresholds apply

Reasoning

The defence argued the Chairperson was a ceremonial steward whose role did not require the relevant professional skills. The court disagreed, holding that under the new constitutional dispensation value for taxpayers' money is guaranteed by meeting thresholds before appointment to public positions, and no one should be appointed to a public office they cannot legitimately fulfil.

p. 7

Legal principles established

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  • Statutory qualifications for appointment to public office are mandatory and an appointee must demonstrably possess them; experience in a specialised field cannot be assumed to be obliquely attained
  • Public appointments must adhere to the values in Articles 10 and 232, Chapter Six (Article 73(2)), and be based on fair competition and merit under section 10 of the Public Service (Values and Principles) Act
  • The right of access to information under Article 35(1) of the Constitution is limited to citizens who are natural persons and does not extend to juridical persons such as companies or NGOs
  • An appointing authority bears the obligation to inquire into the personal integrity, competence and suitability of an appointee to a state or public office

Court orders

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  1. 1.A declaration that Ms Mary Wambui Munene does not meet the required constitutional and statutory qualifications and experience for appointment as Chairperson of the National Employment Authority Board and is unqualified, unsuitable and unfit to serve
  2. 2.A declaration that the appointment of Ms Mary Wambui Munene vide Gazette Notice dated 14th October, 2019 did not meet the substantive and procedural constitutional requirements and is unconstitutional, unlawful, irregular, null and void for contravening Articles 10, 27, 73(2) and 232 of the Constitution
  3. 3.A declaration that the 1st respondent's handpicking and appointment of Ms Mary Wambui Munene without following laid-out requirements is unconstitutional, unlawful and irregular
  4. 4.Quashing of Gazette Notice No. 9816 (Vol. Cxxi-No.137) dated 14th October, 2019 appointing Mary Wambui Munene as Chairperson of the National Employment Authority Board, forthwith
  5. 5.A permanent injunction restraining Ms Mary Wambui Munene from assuming office as Chairperson of the National Employment Authority
  6. 6.A direction that the 1st respondent ensure future appointments of the Chairperson of the NEA Board strictly adhere to the substantive and procedural constitutional and statutory requirements applicable in public service

Authorities

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Legislation

  • National Employment Authority Act No. 3 of 2016sections 10(1), 10(2)(a)-(c), 10(3), 11
  • Human Resource Management Professionals Act, 2012sections 19(1)
  • Public Service Actsection 36(1)
  • Public Service (Values and Principles) Actsection 10(1)-(3), section 8
  • Public Officer Ethics Actsection 22
  • Access to Information Actsection 4(1) and (3)
  • Constitution of Kenya, 2010Articles 3, 10, 12-18, 23(3), 27, 35(1)-(2), 73(2), 232, 260; Chapter Three; Chapter Six

Cases cited (6)

  • Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others
    [2013] eKLR
  • Kituo cha Sheria & another v Central Bank of Kenya & 8 others
    [2014] eKLR
  • Godfrey Musaina & another v Cabinet Secretary for Tourism & 7 others
    [2017] eKLR
  • Ferdinand Ndung'u Waititu v Benson Riitho Mureithi (suing on his behalf and on behalf of the general public) & 2 others
    [2018] eKLR
  • Famy Care Limited v Procurement Administrative Review Board & Another
    [2013] eKLR
  • Paul v Virginia
Jurisdiction invoked
Articles 10, 23, 35, 73(2) and 232 of the Constitution of Kenya, 2010; sections 10(2) of the National Employment Authority Act and 10 of the Public Service (Values and Principles) Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Young Parliamentarians Association & 2 others v Cabinet Secretary Labour & Social Protection & 3 others; Institute of Human Resource Management & another (Interested parties) [2020] KEELRC 1886 (KLR)", Case Analysis (2020). Consolidated Petitions Nos. 190 of 2019 and 193 of 2019 (Petition 190 of 2019 as lead). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1886/eng@2020-01-17

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