Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 962 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the re-appointment of three Nairobi transport authority board members because the process skipped open competition and ignored ethnic diversity.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / sub judice
The principle does not bar the petition because the prior High Court case on the initial appointments has not been determined
The Respondents argued that the issue of the initial appointments was pending in High Court Petition No. 94 of 2018 and that determining it here would violate res sub judice. The Court held that res judicata requires an earlier decision on the issue and a final judgment on the merits involving the same parties; since the High Court matter had not been determined, there was no basis for impugning these proceedings.
Constitutionality of the re-appointment process
The re-appointment was unconstitutional, unlawful and void ab initio for want of public participation, competitiveness, transparency and ethnic inclusiveness contrary to Articles 10, 27(4) and 232(1)
The Court found no evidence of a competitive process (advertising, applications, shortlisting, interviews) and noted that all the Interested Parties were from one ethnic community, contrary to the national values of inclusiveness, equity and non-discrimination. Following Mumbi Ngugi J. in Benson Riitho Mureithi and David Kariuki Muigua, the Court held that all public appointments, including re-appointments, must conform to constitutional values.
Whether a second-term appointee must undergo a competitive process
Re-appointments must still comply with constitutional and statutory requirements; compliance is necessary before re-appointing
The Respondents relied on authority that competitive recruitment applies only to first-time appointments. The Petitioner relied on authority that even incumbents seeking re-appointment must have the position subjected to the appointment process so their performance may be assessed against other candidates, and that re-appointments must observe the constitutional provisions and principles because the appointee may have committed acts or omissions during the first term. The Court adopted this approach in invalidating the re-appointments.
Legal principles established
#- Public appointments must be made in accordance with constitutional values and principles, including competitive and participatory processes under Articles 10, 27 and 232
- Res judicata does not apply where the prior suit has not been determined and there is no final judgment on the merits
Court orders
#- 1.An order quashing Gazette Notice Vol. CXXIII – NO. 42 No. 1714 dated 5th February 2021, in the nature of certiorari
- 2.A declaration that the re-appointment of the Interested Parties was unconstitutional, unlawful and void ab initio
- 3.The Interested Parties to cease holding the offices in respect of the impugned appointment forthwith
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Articles 10, 27, 73(2) and 232 of the Constitution of Kenya, 2010 (constitutional petition on public appointments)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Chairman, Nairobi Metropolitan Area Council & 3 others; Mary Waithigieni Chege & 2 others (Interested Parties) [2021] KEELRC 962 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/962/eng@2021-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.