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ELRCDismissedNot stated in the judgment· [2022] KEELRC 70 (KLR)

Wambui v Kenya Civil Aviation Authority & 3 others; Kenya Chapter (Interested Party) (Petition E002 of 2022) [2022] KEELRC 70 (KLR)

Employment and Labour Relations Court
10 May 2022
6,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to block the appointment of a civil aviation Director General because the corruption allegations against him were unsubstantiated.

What this practically means

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Executive summary

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This is a ruling by the Employment and Labour Relations Court at Nakuru (Nderitu J) on a Notice of Motion dated 14th March 2022 seeking interim and conservatory orders to stay the appointment of Emile Nguza Arao as Director General of the 1st Respondent (a civil aviation authority), pending the hearing of a petition challenging the appointment. The Petitioner, an NGO, argued that the appointee lacked the integrity required under Articles 10 and 73 of the Constitution, relying on a parliamentary committee report on audited accounts of the East African Community for the year ended 30th June 2018 which, it alleged, showed pilferage, mismanagement and theft during his tenure at CASSOA. It also contended that the appointment letter was signed by a third party contrary to Section 19 of the Civil Aviation Act and the delegare non potest delegare principle. The Respondents and the 1st Interested Party demonstrated a transparent, competitive recruitment process supported by due-diligence clearances from the NIS, EACC, DCI, CRB and HELB, and argued the committee report was unadopted and condemned the appointee unheard. The court framed two issues: whether conservatory orders should issue, and costs. Applying Gatirau Peter Munya v Dickson Mwenda Kithinji and CREAW v Attorney General, it found no prima facie case, no demonstrated prejudice, and that public interest favoured unhindered operations of the authority and the aviation industry. The delegare allegation failed for want of any appointment letter in the supporting affidavit. The court denied the conservatory orders, set aside and vacated the interim orders, and directed that costs of the application abide the costs orders in the petition.

Key legal issues

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01

Whether allegations based on an unadopted parliamentary committee report establish a prima facie case of lack of integrity against the 1st Interested Party

Holding

No. The committee's recommendations were subject to scrutiny by the Assembly or Council of Ministers; the Petitioner showed no investigation, charge, or conviction, and the claims were unsubstantiated.

Reasoning

The court examined the referenced report pages and found only recommendations for further discussion by the Assembly or Council of Ministers, not final findings. The Petitioner could not show the 1st Interested Party was investigated, charged, or convicted, and had not reported him to EACC or DCI. The committee also never invited him to respond, contrary to natural justice. The allegations were therefore unsubstantiated and could not ground a prima facie case.

p. 9
02

Whether the appointment letter's execution by a party other than the 3rd Respondent offended Section 19 of the Civil Aviation Act and the delegare non potest delegare principle

Holding

The allegation fails; no such appointment letter was produced, and the gazette notice was issued by the 3rd Respondent himself.

Reasoning

The court scrutinized the Petitioner's supporting affidavit for the alleged third-party-executed appointment letter but found none - the annexure cited was in fact the committee report. The 1st and 2nd Respondents explained that Section 19 does not require the CS's own hand, and the gazette notice No. 3188 of 18th March 2022 was issued by the 3rd Respondent, so no delegation occurred.

p. 9
03

Whether the interim conservatory orders should be confirmed or vacated

Holding

Vacated. No prima facie case, no demonstrated prejudice or nugatory outcome, and public interest favours allowing the appointment and the aviation industry to operate unhindered.

Reasoning

Applying Gatirau Peter Munya v Dickson Mwenda Kithinji and CREAW v Attorney General, the Petitioner failed all three limbs: no prima facie case, no prejudice since the appointment can still be set aside after full hearing, and public interest supports continuity of public institutions. Granting the orders would condemn the 1st Interested Party unheard, contrary to Article 47 and the Fair Administrative Actions Act.

p. 11

Legal principles established

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  • Conservatory orders are public-law remedies granted on the inherent merit of a case, bearing in mind public interest and constitutional values, not on private-law interlocutory injunction tests
  • An applicant for conservatory orders must establish a prima facie case with likelihood of success, demonstrate prejudice/nugatory-ness if denied, and show that the orders serve the public interest

Court orders

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  1. 1.The conservatory orders sought by the Petitioner in the Notice of Motion dated 14th March, 2022 are denied
  2. 2.The interim conservatory orders issued pending the hearing and determination of the application are set aside and vacated
  3. 3.Costs of the application shall abide with the orders on costs in the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 73
  • Constitution of KenyaArticle 232
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 22
  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 165, including Article 165(5)(b)
  • Civil Aviation ActSection 19
  • Fair Administrative Actions ActSection 4
  • Leadership and Integrity ActNot specified
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 13, 19 and 23

Cases cited (3)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji
    (2014) eKLR
  • Centre for Rights Education and Awareness (CREAW) v Attorney General
    (2011) eKLR
  • Matter of Appointment of the Commissioners of Independent Electoral and Boundaries Commission
    (2021) eKLR
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya, read with Article 165(5)(b); Rules 4, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Wambui v Kenya Civil Aviation Authority & 3 others; Kenya Chapter (Interested Party) (Petition E002 of 2022) [2022] KEELRC 70 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/70/eng@2022-05-10

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