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ELRCDismissedPetition dated 3rd December 2020 (Notice of Motion application dated 3rd December 2020)· [2021] KEELRC 2433 (KLR)

Muia v Board of Directors, Anti-Counterfeit Authority; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Petition E092 of 2020) [2021] KEELRC 2433 (KLR)

High Court of Kenya
26 January 2021
NMNzioki Wa Makau
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that a public officer already cleared under Chapter Six can act in a higher role without fresh integrity clearance.

What this practically means

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Executive summary

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By notice of motion dated 3rd December 2020, the Petitioner sought interim orders staying the Respondent's decision to select and appoint the 2nd Interested Party, Fridah Kaberia, as Acting Executive Director of the Anti-Counterfeit Authority, pending hearing of the application and of the Petition. The Petitioner argued that the appointment raised novel questions on public service appointments and compliance with Chapter Six of the Constitution, relying on the definition of 'appointment' in Section 2 of the Public Service Commission Act, No. 10 of 2017 and Section 34 thereof, and asserting that the 2nd Interested Party lacked integrity clearance from the 1st Interested Party (EACC) and the requisite qualifications. The Respondent and 2nd Interested Party opposed the motion, though a replying affidavit said to have been sworn could not be traced on the court file or CTS system, and no submissions were filed for the Respondent or Interested Parties. The court held that while Chapter Six probity applies to acting appointments, it would be improbable that the framers expected fresh clearances for every acting appointment of an existing public officer; the 2nd Interested Party must already have been cleared when she took up her substantive role, and no evidence showed otherwise. The court found the motion devoid of merit and dismissed it with costs to the Respondent and the 1st and 2nd Interested Parties, excluding the non-participating 3rd Interested Party.

Key legal issues

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01

Whether an acting appointment requires a fresh Chapter Six (Article 73) integrity clearance where the appointee is already a substantive public officer

Holding

No additional clearance was required; the officer must have been cleared when first appointed substantively, and no evidence was tendered that she was not cleared

Reasoning

The court accepted that the same probity is generally required of acting appointees, but reasoned that where the appointee is already a public officer within the same body, requiring fresh clearance at every acting appointment would be impractical and improbable as against the framers' expectation. Absence of evidence that the initial appointment lacked clearance defeated the challenge.

p. 4

Legal principles established

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  • An officer already serving substantively in a public body, having been cleared under Chapter Six, need not obtain a fresh EACC clearance merely to act in a higher capacity within the same body

Court orders

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  1. 1.The Notice of Motion application by the Petitioner/Applicant is dismissed with costs to the Respondent, 1st and 2nd Interested Parties

Authorities

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Legislation

  • Public Service Commission Act, No. 10 of 2017Section 2 (definition of 'appointment')
  • Public Service Commission Act, No. 10 of 2017Section 34 (acting appointments)
  • Constitution of Kenya, 2010Chapter Six (Article 73)
  • Constitution of Kenya, 2010Articles 10, 27 & 232

Cases cited (1)

  • Republic v Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 Others
    [2019] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition; interim conservatory relief sought pending determination of Petition)

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, "Muia v Board of Directors, Anti-Counterfeit Authority; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Petition E092 of 2020) [2021] KEELRC 2433 (KLR)", Case Analysis (2021). Petition dated 3rd December 2020 (Notice of Motion application dated 3rd December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2433/eng@2021-01-26

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