Musungu & another v Dola & 2 others; Andati & another (Interested Parties) (Petition E010 of 2021) [2022] KEELRC 1322 (KLR)
The bottom line
#Kenya's High Court confirmed public employers can skip the top-scoring candidate to promote gender balance in appointments.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents violated Article 35(1) by failing to respond to the Petitioners' letter of 12th October 2021
No violation - what was sought were explanations and opinions, not information or records held by the State.
The court examined the letter marked BM-3, which invoked Article 35 and demanded explanations regarding advertisement of posts, whether the letter would be acted on adversely, and why family members had not been heard. The court held that such a request for explanations on how a residents' letter would affect the Petitioners' family interests does not qualify as information or a record held by the Respondents under Article 35 or the Access to Information Act. Hence no obligation to supply arose and no violation was made out.
Whether the right to fair administrative action under Article 47 was violated in the appointment of the 2nd Interested Party
No violation - the appointment was justified on gender-affirmative action grounds and no evidence showed the residents' letter influenced it.
The score sheet showed the 1st Interested Party scored 92.75%, the 2nd Interested Party 84.5% and the third candidate 82%. All three were qualified. The Respondents justified appointing the second-highest scorer to address gender imbalance, there being only 5 female Assistant Chiefs out of 22 in Navakholo Sub-County, consistent with Article 27(6) and 27(8). There was no evidence the 16th July 2021 letter reached the panel or affected the decision, and the Petitioners filed no reply to the Respondents' affidavit. The appointment was therefore lawful.
Whether the Petitioners are entitled to the reliefs sought
Not entitled - all five prayers failed or were rendered moot.
Prayers 1 and 3 failed because the 12th October 2021 letter did not seek 'information' as defined. Prayer 2 failed for lack of evidence the residents' petition was received or influenced the appointment. Prayer 4 was rendered moot because the scores and appointment explanation had been disclosed as exhibits CW3 and CW4. Prayer 5 had no merit as the appointment was justified. The Petition was dismissed with no order as to costs.
Legal principles established
#- A request for explanations or opinions is not a request for 'information' under Article 35 of the Constitution or the Access to Information Act.
- Appointing authorities may depart from strict merit ranking to pursue the two-thirds gender principle and affirmative action under Article 27(6) and 27(8).
- A constitutional petitioner must plead with reasonable precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru threshold).
Court orders
#- 1.The Petition dated 5th November 2021 is found to be without merit and is dismissed.
- 2.No order as to costs.
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Article 35 (right of access to information), Article 47 (fair administrative action), Articles 10, 27(6), 27(8) and 81(b); Access to Information Act; Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musungu & another v Dola & 2 others; Andati & another (Interested Parties) (Petition E010 of 2021) [2022] KEELRC 1322 (KLR)", Case Analysis (2022). Petition dated 5th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1322/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.