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ELRCDismissedPetition (dated 3rd December 2020), ELRC· [2021] KEELRC 1317 (KLR)

Jonathan Muia v Board of Directors Anti Counterfeit Authority; Ethics & Anti-Corruption Commission & 2 others (Interested Parties) [2021] KEELRC 1317 (KLR)

Employment and Labour Relations Court
29 June 2021
NMNzioki wa Makau
4,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that state boards can appoint existing employees to acting executive roles without EACC integrity clearance, and dismissed the challenge.

What this practically means

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Executive summary

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The Petitioner challenged the appointment of Fridah Kaberia as Acting Executive Director of the Anti-Counterfeit Authority by the Board of Directors on 25th September 2020, contending she lacked the prescribed qualifications in the Career Progression Guidelines and Mwongozo Code, lacked fifteen years' experience in trade, industry or intellectual property, had no EACC integrity clearance under Section 12A of the Public Service Act, and was under active EACC investigation. The Petitioner sought declarations that all public appointments require Chapter Six compliance and EACC clearance, that the appointment was null and void, certiorari to quash it, and a declaration that the Respondent could not appoint or extend acting appointments. The Respondent and Interested Parties countered that the appointment followed Head of Public Service guidelines permitting boards to appoint an Acting CEO within seven days of a vacancy, that guidelines' qualifications are minimum requirements, that clearance is only needed for competitive selection, and that the anonymous complaint against the 2nd Interested Party had been referred to court. The Petition was decided on written submissions. The court held that EACC clearance was not required for an acting appointment of an existing employee within the same organisation, that the pending Machakos matter could not ground this suit, and that the Petitioner failed to demonstrate the 2nd Interested Party's disqualification. The Petition was dismissed with no order as to costs, with an advisory that the Respondent should move with dispatch to fill the position substantively.

Key legal issues

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01

Whether integrity clearance is a prescribed requirement for acting appointments

Holding

Not required for acting capacity; only during substantive competitive recruitment

Reasoning

The court reasoned that requiring EACC clearance for an existing employee merely to act within the same organisation would clog the EACC's operations. The 2nd Interested Party was already an employee, and clearance would arise at substantive recruitment. The court treated this as a threshold answer disposing of the core constitutional claim.

p. 5
02

Whether the 2nd Interested Party met prescribed qualifications to act

Holding

The Petitioner failed to demonstrate she was unqualified

Reasoning

Affidavit evidence showed she held an MBA, BA, CPA(K), CPS(K), had attended Strategic Leadership and Development training, had served in the related field since 2005, and had been commended for leadership. The Petitioner did not demonstrate with particularity how she failed the requirements, so the qualifications-based ground failed.

p. 5
03

Whether indefinite acting appointments are lawful

Holding

Indefinite acting appointment would be illegal, but no such finding was made here

Reasoning

The court acknowledged that an indefinite acting appointment would be unlawful but found the appointment was for six months pending a merger, and instead exhorted the Respondent to fill the position substantively with dispatch given the multiple petitions over it.

p. 5

Legal principles established

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  • Clearance by the EACC under Section 12A of the Public Service Act is not required for an acting appointment of an existing employee serving within the same organisation
  • A pending investigation into a candidate's conduct cannot found a petition where the underlying matter is pending before another court

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Anti-Counterfeit ActSection 3; Section 10
  • Public Service Act, 2017Section 2; Section 12A
  • Public Service Commission Act, No. 10 of 2017Section 2; Section 34
  • Leadership and Integrity Act, 2012Section 4(2); Section 52
  • EACC ActSection 11(1)
  • Constitution of KenyaArticles 3(1), 10, 27, 73, 79, 80(c), 232, 252, Chapter Six
  • Mwongozo, Code of Governance for State Corporationsnot specified
  • Career Progression Guidelines for Staff of the Anti-Counterfeit Authority (Revised October 2016)Section 2.1.2
  • Head of Public Service Guideline (F)(2) / Circular No. OP/CAB 9/1A dated 11th March 2020not specified

Cases cited (7)

  • Linus Nganga Kiongo & 73 Others v Town Council of Kikuyu
    Nairobi High Court Civil Case No. 79 of 2011
  • Republic v Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 Others
  • Trusted Society of Human Rights Alliance v The Attorney General & 5 Others
    Nairobi High Court Petition No. 229 of 2012
  • Benson Riitho Mureithi v J.W. Wakhungu & 2 Others
    [2014] eKLR
  • Kenya Young Parliamentarians Association v Cabinet Secretary for Labour & Social Protection & 3 Others
    ELRC Petition No. 190 of 2019
  • Professor Samson Rosana Ondigi v Council of Masinde Muliro University of Science and Technology
    [2021] eKLR
  • Fredrick Ouma Jowi & Another v Board of Directors, Anti-Counterfeit Authority & 3 Others
    ELRC Petition No. E050 of 2020
Jurisdiction invoked
Articles 10, 27, 73, 232 of the Constitution; Chapter Six on leadership and integrity (petition alleging unconstitutional public appointment)

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, "Jonathan Muia v Board of Directors Anti Counterfeit Authority; Ethics & Anti-Corruption Commission & 2 others (Interested Parties) [2021] KEELRC 1317 (KLR)", Case Analysis (2021). Petition (dated 3rd December 2020), ELRC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1317/eng@2021-06-29

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