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ELRCAllowedJudicial review application (Chamber Summons dated June 22, 2020 and Notice of Motion dated July 3, 2020) – number not stated in the judgment· [2021] KEELRC 7 (KLR)

Republic v Communications Authority of Kenya; Information Communication Technology Association of Kenya (ICTAK) (Ex parte) (Judicial Review Application 21 of 2020) [2021] KEELRC 7 (KLR)

High Court of Kenya
9 April 2021
MOMaureen Onyango
6,289 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 Communications Authority's job advert for boosting qualifications beyond the legal minimum and shortening the required public application window.

What this practically means

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Executive summary

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The applicant, ICTAK, a society registered under the Societies Act, sought an order of certiorari to quash the vacancy notice for the position of Director General/Chief Executive Officer of the Communications Authority of Kenya (CA DG/HCA2020). It contended that the advertisement enhanced the qualifications for the office beyond the minimum specifications in Mwongozo, the Code of Governance for State Corporations promulgated under Executive Order No 7 of 2015, thereby excluding otherwise qualified candidates, and that the notice contravened articles 10, 27 and 47(1) of the Constitution, the Public Service Commission Act and the 21-day advertising rule in the Human Resource Policies and Procedures Manual for the Public Service. The respondent, relying on section 11(3) of the Kenya Information and Communications Act, its HR Policy Manual and an advisory from the State Corporations Advisory Committee, maintained that Mwongozo prescribes only minimum requirements and that boards have latitude to add requirements, and that the advertising period exceeded 21 days. Leave granted earlier operated as a stay. The court, Maureen Onyango J, framed two issues: whether the advertisement was ultra vires, arbitrary, unlawful, unreasonable and procedurally unfair, and whether the applicant was entitled to the orders sought. Holding that Mwongozo has statutory underpinning under sections 7 and 30 of the State Corporations Act and could not be displaced by an SCAC advisory or an internal manual, the court found the respondent had acted ultra vires in enhancing minimum qualifications, violating articles 10(2)(b) and 73, and that both the original advert (18 days) and the re-advert (about 5 days) fell short of the 21-day minimum, disclosing both illegality and procedural impropriety. Certiorari issued quashing the vacancy notice, with costs to the applicant.

Key legal issues

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01

Whether the respondent acted ultra vires in enhancing the minimum qualifications for Director General beyond Mwongozo

Holding

The respondent acted without authority and ultra vires in enhancing the minimum qualifications set out in Mwongozo.

Reasoning

Mwongozo, promulgated under sections 7 and 30 of the State Corporations Act, sets minimum person specifications for CEOs of state corporations. Since the Kenya Information and Communications Act does not prescribe qualifications, Mwongozo's apply. An SCAC advisory and the respondent's HR manual cannot override a code with statutory underpinning, nor does a 'comply and explain' policy avail. Enhancing the qualifications locked out otherwise qualified candidates and violated articles 10(2)(b) and 73.

p. 16
02

Whether the advertisement and re-advertisement met the 21-day minimum advertising period

Holding

Both the original advertisement and the re-advertisement failed the 21-day minimum under the Public Service Human Resource Policies and Procedures Manual, binding the respondent since it is part of the public service.

Reasoning

The Manual's definition of Public Service includes State Corporations and Statutory Bodies, and its preamble extends it to National Government and other Government Agencies. The original advert ran 18 days; the re-advertisement gave only about 5 days. A re-advertisement is not a continuation of the original, so fresh applicants were entitled to the full 21 days. This constituted procedural impropriety.

p. 17
03

Whether the impugned advertisement disclosed illegality and procedural impropriety warranting certiorari

Holding

Yes; the advertisement was both procedurally improper and illegal, and certiorari issued to quash the vacancy notice.

Reasoning

Applying the classic grounds of judicial review (illegality, irrationality and procedural impropriety) as articulated by Lord Diplock in Council of Civil Service Unions and in Pastoli, the court found the respondent had acted beyond its statutory remit in altering minimum qualifications and had failed to observe the 21-day advertising rule, hence both illegality and procedural impropriety, justifying the quashing order sought in the motion dated July 3, 2020.

p. 18

Legal principles established

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  • A statutory body may not enhance or alter the minimum qualifications for a public office prescribed in a code with statutory underpinning; enhanced qualifications can only be an added advantage considered at interview, not a filter to lock out otherwise qualified candidates.
  • Where a statute or instrument with statutory underpinning prescribes a framework, a public authority must strictly comply with it; an advisory from SCAC or an internal HR manual cannot supersede it.
  • A re-advertisement is not a continuation or extension of the original advertisement; fresh applicants are entitled to the full statutory minimum advertising period.

Court orders

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  1. 1.An order of certiorari be and is hereby granted to remove into this court and quash the vacancy notice for the position of Director General/Chief Executive Officer of Communications Authority of Kenya, referenced as CA DG/HCA2020
  2. 2.The respondent shall pay the applicant's costs of this suit

Authorities

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Legislation

  • Societies ActChapter 108
  • Kenya Information and Communications Act1998; sections 11, 11(3)
  • Constitution of Kenya, 2010articles 1, 2, 3 (Convention), 10, 10(2)(b), 27, 35(3), 47(1), 48, 73, 94(5), 155(3)(a), 158(3), 159(2)(d), 232, 234(2)(a), 234(3), 252(1); Chapter Six
  • State Corporations Actsections 7, 30
  • Mwongozo, Code of Governance for State Corporations (Executive Order No 7 of 2015)Attachment 1
  • Fair Administrative Action Actsection 5
  • Public Service Commission Act2017; sections 3, 35, 36(1)(b), 36(3)(a) & (e), 37(1), (2), (3), 37(4)(e)
  • Human Resource Policies and Procedures Manual for the Public Service (May 2016)section B 4(1)
  • Leadership and Integrity Actnot specified
  • Civil Procedure Actsection 1B
  • Civil Procedure RulesOrder 21 rule 1
  • Discrimination (Employment and Occupation) Convention, 1958articles 1, 2 and 3

Cases cited (15)

  • Githu Muigai & another v Law Society of Kenya & another
    (2015) eKLR
  • Republic v County Government of Mombasa ex parte Outdoor Advertising Association of Kenya
  • Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 others (Interested Parties)
    [2019] eKLR
  • Jasbir Singh Rai & 4 others
    [2014] eKLR
  • Joy Brenda Masinde v Law Society of Kenya
    Petition No 54 of 2015
  • Pastoli v Kabale District Local Government Council and others
    (2008) 2 EA 300
  • Council of Civil Unions v Minister for the Civil Service
    [1985] AC 2
  • Re An Application by Bukoba Gymkhana Club
    [1963] EA 478
  • Okiya Omtata Okoti v Ethics and Anti-Corruption Commission & another
    [2021] eKLR
  • Resley v the City Council of Nairobi
    [2006] EA
  • Republic v Vice Chancellor, Jomo Kenyatta University of Agriculture and Technology ex parte Cecilia Mwathi and another
    [2008] eKLR
  • Council of Civil Service Unions v Minister for the Civil Service
    [1984] 3 All ER 935
  • Associated Provincial Picture Houses Ltd v Wednesbury Corporation
    [1948] 1 KB 223
  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876
  • Francis Bahikirwe Muntu and others v Kyambogo University
    Miscellaneous Application Number 643 of 2005 (UR)
Jurisdiction invoked
Judicial review / supervisory jurisdiction of the High Court over administrative action (articles 10, 27, 47 and 232 of the Constitution; Fair Administrative Action Act, 2015)

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, "Republic v Communications Authority of Kenya; Information Communication Technology Association of Kenya (ICTAK) (Ex parte) (Judicial Review Application 21 of 2020) [2021] KEELRC 7 (KLR)", Case Analysis (2021). Judicial review application (Chamber Summons dated June 22, 2020 and Notice of Motion dated July 3, 2020) – number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/7/eng@2021-04-09

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