Republic v State Corporations’ Advisory Committee (SCAC) & 2 others Ex parte Ezekiel Mutua; Christopher Wambua (Interested Party) [2022] KEELRC 920 (KLR)
The bottom line
#The High Court ruled that Ezekiel Mutua's KFCB contract renewal was void because CEOs cannot legally serve more than two terms.
What this practically means
#Executive summary
#Key legal issues
#Whether SCAC, an unincorporated committee, can be sued in judicial review
Yes - judicial review lies against unincorporated bodies exercising public duties under statute
Judicial review is a supervisory jurisdiction; the capacity of a defendant turns on whether a recognisable public law wrong is alleged and whether the body performs public duties under statutory powers. SCAC is a creature of the State Corporations Act with defined functions and made the decisions under challenge, so it is properly sued despite lacking separate legal personality.
Whether the Interested Party had capacity to swear the replying affidavit and whether it should be struck out
Yes, he had capacity as Acting CEO and party; striking out refused
As a party and member of the Board in his capacity as Acting CEO, Wambua had capacity to swear the affidavit on his own behalf and on behalf of the 3rd Respondent. Allegations of perjury cannot be determined without a hearing and required proof by evidence not before the Court, so that ground was moot.
Whether the Applicant served one or two terms as CEO
Two terms - secondment did not de-link the first term
The Applicant was substantively appointed in October 2015 after a competitive process; secondment merely preserved his pension status and did not alter his employment with KFCB. His first term ran from October 2015 and was renewed in 2018, so by October 2021 he had served two three-year terms.
Whether the renewal of contract by the 3rd Respondent was lawful
No - it contravened the HR Policy Manual, Mwongozo and Government policy limiting a CEO to two terms
The five-year renewal of 14th July 2021 contravened Section 2.5.2 of KFCB's Human Resource Policy and Procedures Manual, Mwongozo's tenure provisions (three-year term renewable once) and Government policy that a CEO is ineligible for reappointment for a third term. It also breached Section 11C of the Films and Stage Plays Act and Section 5(3) of the State Corporations Act requiring Ministerial approval of terms.
Whether the Applicant had legitimate expectation of a further term
Not determined as a live issue; it would only arise if the renewal were valid
The Court held that the questions of lawful appointment, procedure and legitimate expectation would only arise should the Court find the Applicant was properly appointed for the term commencing 26th October 2021. Having found the renewal void, these issues did not arise for determination.
Legal principles established
#- Judicial review proceedings can be brought against any corporate or unincorporated body if that body performs a public duty
- A seconded employee remains a substantive employee of the host organisation and secondment does not alter employment status for purposes of counting tenure
Court orders
#- 1.The notice of motion dated 9th August 2021 is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Supervisory judicial review jurisdiction of the High Court over bodies performing public duties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v State Corporations’ Advisory Committee (SCAC) & 2 others Ex parte Ezekiel Mutua; Christopher Wambua (Interested Party) [2022] KEELRC 920 (KLR)", Case Analysis (2022). Judicial Review Motion dated 9th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/920/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.