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ELRCPartially AllowedNot stated in the judgment extract (Amended Petition amended on 21st September, 2020)· [2021] KEELRC 1121 (KLR)

Kipatia Lekarkar & 9 others v Deputy County Commissioner,Samburu Central Sun-County; Philip Leparsulan & 5 others (Interested Parties) [2021] KEELRC 1121 (KLR)

Employment and Labour Relations Court
26 July 2021
3,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court in Nyeri invalidated a chief's appointment because the recruiter ignored its own advertised qualifications and ran a closed, opaque process.

What this practically means

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Executive summary

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The Petitioners challenged the recruitment, shortlisting and interview of candidates for the position of Chief of Amaiya Location, Lorroki Division, Samburu County, conducted on 18th March 2020 following an advertisement of 13th December 2019, and the subsequent appointment of the 1st Interested Party by letter dated 5th June 2020. They contended that the process was unprocedural, opaque, discriminatory and marred by favouritism, contrary to Articles 10, 27, 41, 47 and 232 of the Constitution, and that the 1st Interested Party lacked the advertised qualifications, notably KCSE grade C+ with C+ in English and Kiswahili. They sought declarations of unconstitutionality, certiorari to quash the recruitment and appointment, a permanent injunction, and damages. The Respondent maintained that the recruitment was transparent and compliant, that she had lawful authority under the National Government and Coordination Act 2013, and that the most qualified candidate was selected with the approval of the Regional Commander. She further argued the Petitioners were motivated by clan and family interests and that the petition had been overtaken by the 1st Interested Party's confirmation. The court framed four issues: qualification of the 1st Interested Party, the fairness of the recruitment process, entitlement to damages, and costs. It found that the advertised criteria were not met by the appointee or the shortlisted candidates, that the process was a closed, opaque affair lacking public participation contrary to Articles 10, 73, 234 and 236, and that the Respondent ought to have re-advertised rather than proceed. The court allowed the petition with costs to the Petitioners, though it did not expressly issue the specific declarations, quashing orders, injunction or damages award sought. Judgment was delivered at Nyeri on 26th July 2021 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether the 1st Interested Party was qualified for appointment as Chief, Amaiya Location

Holding

The court found that neither the 1st Interested Party nor the shortlisted candidates met the advertised criteria, including the mandatory KCSE grade C+ requirement with C+ in English and Kiswahili.

Reasoning

The petitioners submitted that the 1st Interested Party lacked the mandatory academic requirements of grade C+ or its equivalent with C+ in both English and Kiswahili as set out in the advertisement of 13th December, 2019. The respondent, despite asserting her discretion, did not address the petitioners' protest that the salient ingredients of the advertisement were not met by the 1st Interested Party or any shortlisted candidate. The court found this unaddressed public concern fatal to the respondent's case, rendering the appointee unqualified from the outset.

p. 4
02

Whether the recruitment process was discriminatory and flawed

Holding

The recruitment process was found opaque, lacking transparency and public participation, and contrary to Articles 10, 73, 234 and 236 of the Constitution.

Reasoning

The court found that shortlisting and interviews were conducted in a closed, in-house manner without public participation, contrary to the constitutional values of transparency, competitiveness and accountability. The respondent failed to demonstrate that the advertised criteria were applied, and where appropriate candidature was lacking she ought to have re-advertised rather than proceed. The process was described as a concerted scheme that imbued the appointment with a lack of constitutionality from the onset.

p. 5
03

Whether the petitioners are entitled to damages for violation of their constitutional rights

Holding

The court framed this as an issue but did not make an express award of damages in its disposition.

Reasoning

Although the petitioners sought a finding that they were entitled to damages for violation of Articles 10, 27, 35, 41, 47 and 232, the judgment's disposition does not assess or award any quantum of damages. The only operative order is the allowance of the petition with costs. Whether damages flow from the general allowance of the petition is not clarified in the judgment as extracted.

p. 6

Legal principles established

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  • Public appointments must adhere to the constitutional values in Articles 10 and 232, Chapter Six on integrity, and merit-based competition under section 10 of the Public Service (Values and Principles) Act; where the appointing authority cannot find suitable candidates per the advertised criteria, it must re-advertise rather than proceed unprocedurally.

Court orders

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  1. 1.The petition is allowed with costs to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 3, 10, 22(1), 23, 27, 35, 41, 47, 73(2), 162(2), 165, 232, 234, 236, 255, Chapter Six
  • Public Service (Values and Principles) ActSection 10
  • Public Service Commission ActSection 36
  • National Government and Coordination Act 2013Section 15(b) as read with section 16

Cases cited (2)

  • Ferdinard Ndung'u Waititu v Benson Riitho Mureithi (suing on his behalf and on behalf of the general public) & 2 others
    (2018) eKLR
  • Ex Chief Peter Odoyo Ogada & Others v Independent Electoral and Boundaries Commission & others
    Civil Appeal No. 307 of 2012
Jurisdiction invoked
Articles 3(1), 22(1), 23, 162(2), 41, 165 and 255 as read with Article 159 of the Constitution of Kenya, 2010 (as pleaded by the Petitioners)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kipatia Lekarkar & 9 others v Deputy County Commissioner,Samburu Central Sun-County; Philip Leparsulan & 5 others (Interested Parties) [2021] KEELRC 1121 (KLR)", Case Analysis (2021). Not stated in the judgment extract (Amended Petition amended on 21st September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1121/eng@2021-07-26

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