Republic v Attorney General & another Ex Parte Benedict Kabugi Ndungu; Kembi Gitura (Interested Party) [2021] KEELRC 1372 (KLR)
The bottom line
#Kenya's High Court upheld President-appointed CA Chair Kembi Gitura, ruling that a suspended court decision kept the 2018 amendments valid during the interim period.
What this practically means
#Executive summary
#Key legal issues
#Effect of the suspended declaration of invalidity of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 on the applicable appointment procedure
Because the Senate of the Republic of Kenya judgment suspended the nullification of the 2018 amendments for nine months, the 2018 amendments (including the amended Section 6 of the KIC Act) remained in force, and the appointment did not require a gazette vacancy notice or selection panel
The Omtatah judgment had declared the 2018 amendments to Section 6 of the KIC Act unconstitutional. However, the subsequent Senate of the Republic of Kenya decision suspended the orders nullifying the impugned Acts for nine months from 29th October 2020, within which Parliament could regularise them. During that interim period the amended law retained force. The appointment was gazetted on 10th March 2021, before expiry of the suspension, and therefore rested on the validly applicable Section 6 as amended in 2018, which vests appointment discretion in the President.
Whether the appointment was ultra vires and procedurally flawed for want of a vacancy notice and selection panel
The appointment was lawful because the provision relied on (Section 6 as amended by the 2018 Act) does not require a vacancy declaration or selection panel and vests the power to appoint in the President
The Applicant argued the appointment contravened Sections 6 and 6B of the KIC Act as amended in 2013, requiring a gazette vacancy notice and a selection panel. The court found the operative law was the 2018 version, which solely vests the appointment power in the President. Consequently, the alleged procedural omissions did not render the appointment unlawful, and no basis existed to quash the Gazette Notice.
Legal principles established
#- Where a declaration of invalidity of a statute is suspended for a fixed period, the impugned statute continues to apply during the interim period pending expiry of the suspension
- In public interest matters, a court may order each party to bear its own costs
Court orders
#- 1.Judicial review application dismissed in its entirety
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Judicial review jurisdiction under order of certiorari, following leave granted by the Court on 19th March 2021; Constitution of Kenya 2010 (Articles 10, 27, 41, 47(1), 129, 232)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another Ex Parte Benedict Kabugi Ndungu; Kembi Gitura (Interested Party) [2021] KEELRC 1372 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 22nd March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1372/eng@2021-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.