Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No. E113 of 2021 (consolidated with Judicial Review Application No. E019 of 2021)· [2022] KEELRC 1398 (KLR)

Ondo & another v Ethics and Anti-Corruption Commission & 2 others; Acting Deputy Chief Executive Officer of Ethics and Anti-Corruption Commission & another (Interested Parties); Njenga (Exparte) (Petition E113 of 2021 & Judicial Review Application E019 of 2021 (Consolidated)) [2022] KEELRC 1398 (KLR)

High Court of Kenya
13 May 2022
MOMAUREEN ONYANGO
7,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court allowed the EACC to openly recruit its Deputy CEO, ruling no official could claim automatic confirmation without a competitive selection process.

What this practically means

#

Executive summary

#
Two suits were consolidated: a petition by Kevin Otieno Odongo filed in purported public interest seeking to stop the external advertisement of the Deputy Chief Executive Officer position of the Ethics and Anti-Corruption Commission, on the basis that Abdi Ahmed Mohamud, who had acted in the position for over two years, had a legitimate expectation of confirmation; and a judicial review application by Adrian Kamotho Njenga seeking certiorari to quash recruitment notice EACC/DCEO/1 of 9th July 2021, on grounds that the advertised qualifications, particularly 17 years of relevant work experience, were discriminatory, arbitrary and higher than the statutory qualifications for the CEO under Section 16 of the EACC Act. Sheria Mtaani Na Shadrack Wambui was enjoined as 2nd Interested Party. Maureen Onyango J framed five issues. The Court held that the EACC, as an independent commission under Article 79 and its own Act, is not bound by the Public Service Commission Act, including Section 34 on acting appointments. It found that the Petitioner and 2nd Interested Party lacked locus to protect the 1st Interested Party's rights, he having deposed that he did not instruct them and welcomed open competition, and that no legitimate expectation of confirmation without competition could arise, such an expectation being unconstitutional contrary to Articles 10 and 232. On qualifications, the Court held that the Act prescribes qualifications only for the Secretary/CEO, leaving the Commission discretion under Section 18(2) to set qualifications for secretariat positions, and that the advertised 17 years of relevant experience was not higher than the statutory 10 years at management level. Both suits were dismissed with no order as to costs, the Court noting the suits were framed as public interest litigation.

Key legal issues

#
01

Whether the Public Service Commission Act applies to the EACC

Holding

It does not; the EACC is an independent commission subject only to the Constitution and its own Act.

Reasoning

Article 249(2) provides that independent commissions are subject only to the Constitution and the law and are not subject to direction or control by any person or authority. Sections 18, 28 and 32 of the EACC Act and its Code of Conduct confirm the Commission's independence, including over staffing. Section 34 of the Public Service Commission Act limiting acting appointments is therefore inapplicable to the EACC.

p. 8
02

Whether the 1st Interested Party had legitimate expectation of confirmation

Holding

No legitimate expectation arose; the Interested Party himself disclaimed any claim and confirmation without competition would violate Articles 10 and 232.

Reasoning

The Interested Party deposed that he did not instruct the Petitioner and was happy to undergo an open interview. Legitimate expectation requires an inducement or promise by the decision-maker within the confines of the law. No promise was proved, and even if made, confirmation without competitive selection would contravene the constitutional values of fair competition and merit-based appointment.

p. 11
03

Whether the qualifications for Deputy CEO were unlawfully higher than those for the CEO

Holding

They were not; the Act prescribes no qualifications for the Deputy CEO and the Commission has discretion to set them.

Reasoning

Section 16 of the EACC Act prescribes qualifications only for the Secretary/CEO. Section 18(2) empowers the Commission to appoint professional, technical and administrative staff, so the Commission may determine qualifications for other positions. The advertised 17 years of 'relevant' work experience was not higher in substance than the statutory 10 years proven experience at management level required of the CEO.

p. 17
04

Whether the Petitioner and 2nd Interested Party had locus standi to litigate on behalf of the 1st Interested Party

Holding

They lacked locus; the person whose rights they claimed to protect was competent to sue and did not feel aggrieved.

Reasoning

Articles 22(2) and 258(2) permit proceedings on behalf of others only in defined categories. The 1st Interested Party, a qualified officer able to institute proceedings, deposed that he had not instructed the Petitioner or the 2nd Interested Party and did not oppose the advertisement. Protecting his alleged legitimate expectations therefore does not arise.

p. 9

Legal principles established

#
  • The Ethics and Anti-Corruption Commission, being an independent commission established under Article 79 with its own Act and Code of Conduct, is not bound by the Public Service Commission Act, including Section 34.
  • Where the statute does not prescribe qualifications for a position in the Commission's secretariat, the Commission has discretion to determine those qualifications.
  • Legitimate expectation cannot be anchored on an expectation that is unconstitutional; appointments must be competitive and merit-based under Articles 10 and 232.

Court orders

#
  1. 1.Both the petition and the judicial review application are dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 1(2)-as cited, 10, 22, 27, 47(1), 48, 79, 94(5), 156, 156(4)(b), 232, 234(2)(a)(i), 248(2), 249(2), 253, 258, 159(2)(d), Chapter Six
  • Ethics and Anti-Corruption Commission Act, 2011Sections 3, 13(2)(e), 16, 18, 28, 32, Third Schedule
  • Public Service Commission Act, 2017Sections 5, 34, 36(1)(b), 37
  • Human Resource Policies and Procedures Manual for the Public ServiceSection B.4.(1)
  • Statutory Instruments Act, 2013Section 24(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Commission's Corporate Services Policies and Procedures Manual 2020Clauses 2.4.5, 2.4.9
  • Commission's Career Progression GuidelinesSection 1.1.2
  • International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 (No. III)Article 1(2)

Cases cited (16)

  • Okiya Omtata Okoiti v Ethics and Anti-Corruption Commission & Another
    Petition No. E040 of 2020; [2021] eKLR
  • Judicial Service Commission v Salaries and Remuneration Commission & another
    [2018] eKLR
  • Edah Cherono Maiywa v University of Nairobi Enterprises and Services Limited
    [2020] eKLR
  • Kenya Shoe & Leather Workers Union v Slapper Shoe Industries
    [2015] eKLR
  • Silas Kaumbuthu Mbutura v Meru Central Dairy Co-operative Union Limited
    [2015] eKLR
  • Republic v Director of Public Prosecutions & 4 others Ex parte - Senator Johnson Nduya Muthama
    [2015] eKLR
  • Republic v Kenya Revenue Authority Exparte Shake Distributors Ltd
    [2012] eKLR
  • Resley v The City Council of Nairobi
    [2006] 2 EA 311
  • Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 others (Interested Parties)
    [2019] eKLR
  • Consumer Federation of Kenya (COFEK) vs. Attorney General & 2 others
    [2012] eKLR
  • Community Advocacy and Awareness Trust and Others vs. Attorney General
    Nairobi Petition No 243 of 2011
  • Githu Muigai & Another v Law Society of Kenya & Another
    [2015] eKLR
  • Macfay v United Africa Co. Ltd
    [1963] 3 All E.R. 1169
  • Republic v County Government of Mombasa Ex-Parte - Outdoor Advertising Association of Kenya
    [2014] eKLR
  • Republic v Communications Authority of Kenya Ex Parte Information Communication Technology Association of Kenya (ICTAK)
    [2021] eKLR
  • Henry Mutundu v Chairperson, Independent Electoral and Boundaries Commission & another; Attorney General (Interested Party)
    [2019] eKLR
Jurisdiction invoked
Articles 22(2)(c) and 258(2)(c) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ondo & another v Ethics and Anti-Corruption Commission & 2 others; Acting Deputy Chief Executive Officer of Ethics and Anti-Corruption Commission & another (Interested Parties); Njenga (Exparte) (Petition E113 of 2021 & Judicial Review Application E019 of 2021 (Consolidated)) [2022] KEELRC 1398 (KLR)", Case Analysis (2022). Petition No. E113 of 2021 (consolidated with Judicial Review Application No. E019 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1398/eng@2022-05-13

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