Kipatia Lekarkar & 9 others v Deputy County Commissioner,Samburu Central Sun-County; Philip Leparsulan & 5 others (Interested Parties) [2021] KEELRC 1121 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Interested Party was qualified for appointment as Chief, Amaiya Location
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.
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.
Whether the recruitment process was discriminatory and flawed
The recruitment process was found opaque, lacking transparency and public participation, and contrary to Articles 10, 73, 234 and 236 of the Constitution.
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.
Whether the petitioners are entitled to damages for violation of their constitutional rights
The court framed this as an issue but did not make an express award of damages in its disposition.
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.
Legal principles established
#- 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
#- 1.The petition is allowed with costs to the petitioners
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamwaro v Embu Water and Sanitation Co.Ltd (Constitutional Petition E008 of 2023) [2023] KEELRC 1213 (KLR)[2023] KEELRC 1213 (KLR)19 May 2023
Cite this brief
#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.