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ELRCPartially AllowedNot stated in the judgment (Petition/Motion dated 14th March 2022)· [2022] KEELRC 1425 (KLR)

Cheruiyot v Board of Trustees, Commodities Fund. & 2 others; Ndungu (Interested Party) (Employment and Labour Relations Claim E050 of 2022) [2022] KEELRC 1425 (KLR)

Environment and Land Court/High Court of Kenya (Constitutional Division), Nairobi
23 June 2022
4,517 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 halted the Commodities Fund's recruitment of a new Managing Trustee, letting the ousted official's replacement continue acting while her constitutional challenge proceeds.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 14 March 2022 in a constitutional petition brought by Nancy Chelangat Cheruiyot, former Managing Trustee of the Commodities Fund, whose four-year contract expired on 28 January 2022 without renewal. She sought conservatory orders restraining the recruitment of a new Managing Trustee, restraining the interested party (Jane Ndungu) from acting in the office, and her reinstatement. She argued that the Cabinet Secretary (2nd respondent) lacked power under the Crops Act to decline the renewal recommended by the Board (1st respondent), and that the Mwongozo Code governed the appointment. The respondents and interested party opposed, contending that section 9(3) of the Crops Act vests appointment power in the Cabinet Secretary, that Mwongozo cannot supersede statute, and that the applicant had handed over and been paid her dues. Applying the conservatory-order principles from Board of Management of Uhuru Secondary School, CREAW, Munya, Mrao and Nguruman, the court found the applicant had an arguable prima facie case on the Cabinet Secretary's powers and the applicability of Mwongozo; that the recruitment process, already at the application stage, would erode the substratum of the petition if allowed to conclude; and that public interest favoured suspension since the appointment is to a public office funded from public coffers, with no vacuum in the office. The court restrained the recruitment process, allowed the interested party to continue acting, set a written-submissions timetable, and ordered costs in the cause. Reinstatement was not granted at the interim stage.

Key legal issues

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01

Prima facie case

Holding

The applicant established an arguable prima facie case on the powers of the Cabinet Secretary to appoint/renew the Managing Trustee and on the applicability of Mwongozo

Reasoning

The court held that the applicant need only show an arguable case disclosing serious constitutional issues, not a case that must succeed. The crux was the 2nd respondent's powers under the Crops Act and the applicability of Mwongozo, raising arguable issues fit for trial.

p. 8
02

Nugatory risk/prejudice

Holding

Absent conservatory orders the recruitment could be concluded, eroding the substratum of the petition

Reasoning

Applications for the position had closed on 15 March 2022; without orders the 1st respondent could appoint a substantive holder, and the substratum of the main suit - the office of Managing Trustee - would be lost, causing prejudice to the applicant.

p. 9
03

Public interest

Holding

Public interest favoured suspending the recruitment process since the appointment is to a public office funded from public coffers

Reasoning

The Commodities Fund is a state agency funded from public coffers; the Managing Trustee holds a public office; recruitment costs and any damages would come from public funds. With an acting officer in place, no prejudice would befall the respondents if the orders issued.

p. 9

Legal principles established

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  • Principles for granting conservatory orders: prima facie case with likelihood of success, substratum of the petition not to be rendered nugatory, and public interest

Court orders

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  1. 1.Pending the hearing and determination of the petition, the respondents are restrained from further proceeding with the recruitment process for the position of the Managing Trustee of the Commodities Fund
  2. 2.The interested party shall continue to perform the duties of the Managing Trustee of the Commodities Fund in an acting capacity pending the hearing and determination of the petition
  3. 3.The petition shall be canvassed by written submissions
  4. 4.Respondents/interested party granted leave to file further responses and supplementary documents within 7 days
  5. 5.Petitioner to file supplementary responses and written submissions within 7 days of service
  6. 6.Respondents and interested party to file written submissions within 7 days of service
  7. 7.A convenient mention date to issue to confirm compliance and take a judgment date

Authorities

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Legislation

  • Constitution of Kenya (2010)Articles 10, 22, 23, 27, 38, 47, 48, 140, 159(2)(d), 165(3)(d), 232
  • Crops ActNo. 16 of 2013, section 9(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
  • Panari Enterprises Limited vs Lijoodi & 2 others
    (2014) eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others
    (2015) eKLR
  • Martin Wambora vs Speaker of the County Assembly of Embu & 3 others
    (2014) eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 others vs Attorney General
    [2011] eKLR
  • Kevin K. Mwiti & others v Kenya School of Law & others
    [2015] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
Articles 22, 23, 165(3)(d) of the Constitution of Kenya, 2010

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, "Cheruiyot v Board of Trustees, Commodities Fund. & 2 others; Ndungu (Interested Party) (Employment and Labour Relations Claim E050 of 2022) [2022] KEELRC 1425 (KLR)", Case Analysis (2022). Not stated in the judgment (Petition/Motion dated 14th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1425/eng@2022-06-23

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