Law Society of Kenya v Cabinet Secretary for Tourism and Wildlife & 2 others; Kevin Muasya & 4 others (Interested Parties) [2021] KEELRC 1449 (KLR)
The bottom line
#Kenya's Employment Court dismissed the Law Society's challenge to Tourism Regulatory Authority Board appointments, confirming the Cabinet Secretary's direct appointment power after a 2014 law change.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction over the petition
Jurisdiction was settled by the court's ruling of 22nd October 2020 and was not challenged, so the court did not revisit it
The respondents had argued that the court lacked jurisdiction because Board members are not employees but owners' representatives, citing Kenya Council of Employment and Migration Agencies v Samuel Mwongera Arachi. The court noted the issue had been addressed in its ruling dated 22nd October 2020 and, absent any challenge to that ruling, declined to dwell on it.
Whether the appointments of the interested parties complied with section 8(1)(g) of the Tourism Act
The appointments were lawful because the pre-2014 requirements of a competitive nomination process and parliamentary approval under section 8(3) had been deleted by the Statute Law (Miscellaneous Amendment) Act, 2014
The original section 8(1)(g) required competitive nomination and section 8(3) required parliamentary approval. The 2014 amendment deleted the competitive process language and section 8(3) entirely, vesting appointment power directly in the Cabinet Secretary subject only to regional balance and gender parity and expertise or sector nomination criteria. It was not challenged that the interested parties met these criteria.
Whether Board membership amounts to employment within the court's jurisdiction
Board members are non-executive part-time members paid allowances, not employees; the appointment is not a contract of service
Under sections 9(3) and 10 of the Act, members sit at least once every three months and are paid allowances determined by the Minister. Such allowances are not wages, salary or remuneration ordinarily accruing in an employment relationship, so the appointments do not constitute public sector employment subject to public service recruitment procedures.
Whether the appointments violated Articles 10, 27, 73(2) and 232 of the Constitution
No violation established; the petitioner failed to discharge the burden of demonstrating breach of regional balance, gender parity or other constitutional values
The petitioner bore the burden of articulating the alleged violations. It was not challenged that the interested parties were public officers or that regional balance and gender parity were not observed, and no objections from tourism sector associations were raised. In the absence of such proof, the court found no illegality in the Cabinet Secretary's actions.
Legal principles established
#- Where the statutory foundation of a petition has been repealed or amended, the petition premised on the repealed provisions fails
- Board members appointed under section 8(1)(g) of the Tourism Act as amended, who are not public officers and serve part-time on allowances, are not employees and their appointment does not constitute a contract of service
Court orders
#- 1.The petition is hereby dismissed
- 2.Costs to the respondents
- 3.The 5th interested party shall bear her own costs
- Jurisdiction invoked
- Articles 23, 159, 160(1), 162(2)(a), 165 and 258 of the Constitution; section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Cabinet Secretary for Tourism and Wildlife & 2 others; Kevin Muasya & 4 others (Interested Parties) [2021] KEELRC 1449 (KLR)", Case Analysis (2021). Petition E025 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1449/eng@2021-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.