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ELRCPartially AllowedPetition dated November 18, 2021· [2022] KEELRC 1460 (KLR)

Ali v Ministry of Interior and Coordination of National Government & 3 others; Public Service Commission & another (Interested Parties) (Petition E183 of 2021) [2022] KEELRC 1460 (KLR)

Employment and Labour Relations Court
15 June 2022
MOMaureen Onyango
5,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed a chief's appointment because he did not meet the advertised qualifications, but refused to appoint the petitioner who also fell short.

What this practically means

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Executive summary

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The petitioner, a resident of Mandera North Sub-County, petitioned against the appointment of the 2nd interested party as Sub-Chief/Assistant Chief Grade II of Morothile Sub-Location, alleging he had been recommended as the most qualified candidate (scoring 69% in the interview) yet the respondents appointed a less qualified candidate motivated by nepotism and political considerations. He sought declarations that the appointment was null and void, an order of quashing, and a mandatory order compelling his own appointment. The respondents maintained the recruitment was lawful, that the petitioner was disqualified after background checks established he was not a resident of Morothile Sub-Location, and that the 2nd interested party was qualified. The court framed four issues: the petitioner's qualification, the 2nd interested party's qualification, violation of rights, and entitlement to reliefs. It found that none of the shortlisted applicants met the advertised criteria - all were under 30 years and none held a KCSE mean grade C-. The respondents had varied the requirements after interviews, which the court held was unconstitutional and a violation of article 232 values of merit, fair competition and transparency. However, the court also held the petitioner was disqualified on merit grounds, so the mandatory order appointing him was refused. The petitioner's right to fair administrative action was violated because he was secretly disqualified following background checks without being given an opportunity to respond. The court declared the 2nd interested party's appointment null and void ab initio, quashed it and nullified the appointment letter, directed the respondent to re-advertise the position in accordance with the advertised criteria, and made no order for costs.

Key legal issues

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01

Whether the petitioner was qualified for appointment

Holding

The petitioner did not meet the advertised requirements: he was below 30 years and lacked a KCSE mean grade C- or its equivalent.

Reasoning

The court perused the advertisement dated June 8, 2021 which required a KCSE mean grade C-, age of not less than 30 years, and residency. From the applications it was evident all applicants were below 30 years, and none held the requisite academic grade. The residency objection was mishandled by the respondents, but the petitioner still failed on age and academics.

p. 13
02

Whether the 2nd interested party was qualified for appointment

Holding

The 2nd interested party did not meet both the minimum age and academic requirements, and his appointment violated article 232.

Reasoning

The 2nd interested party was 29 years old at application with no waiver of the age limit adduced, and like the petitioner scored D- in KCSE against the advertised grade C-. The PSC waiver of June 12, 2014 could not cure this because the advertisement itself did not disclose the reduced threshold. His appointment was therefore null and void.

p. 13
03

Whether the petitioner's rights were violated

Holding

The petitioner's right to fair administrative action was violated by his secret disqualification following background checks without being heard; the post-interview variation of advertised requirements also violated article 232.

Reasoning

The respondents disqualified the petitioner on residency grounds after background checks without asking him to clarify or giving him an opportunity to respond; he learned of his disqualification only upon service of the replying affidavit. The court also found that lowering the requirements after interviews locked out otherwise qualified persons who had no opportunity to apply.

p. 13

Legal principles established

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  • A background check should not be used to secretly disqualify a candidate without giving him an opportunity to respond, failing which the right to fair administrative action is violated.
  • Varying advertised recruitment requirements after the interview is unconstitutional because it locks out persons who would have qualified under the reduced terms.
  • Appointments to public office must be founded on merit, fair competition and the prescribed qualifications under article 232 and section 36(1) of the Public Service Commission Act.

Court orders

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  1. 1.The appointment of the 2nd interested party is declared null and void ab initio on grounds that he was not qualified to be appointed to the position of Sub Chief Grade II Morothile Sub Location, Morothile Location, Ashabito Division; the appointment is quashed and the appointment letter nullified
  2. 2.The respondent is directed to re-advertise the position and fill the same in accordance with the criteria and qualifications in the advertisement
  3. 3.There shall be no order for costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 3, 10, 19, 20(1) and (2), 21(1), 22, 23, 27(1) and (2), 41, 47, 73, 156, 165, 232, 233, 258(1), 259(1)
  • National Government Co-ordination Act No 1 of 2013Section 15
  • Fair Administrative Action Act No 4 of 2015Sections 4-6
  • Public Service Commission ActSection 36(1)
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (12)

  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others
    [2014] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others
    [2021] eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
  • Gregory Kitonga Wambua & 2 others v County Government of Kiambu
    [2019] eKLR
  • Republic v Firearms Licensing Board & another Ex parte Boniface Mwaura
    [2019] eKLR
  • Paul Kipkorir Kibet v Deputy County Commissioner, Marakwet West Sub County & 4 others
    [2016] eKLR
  • Kenya Youth Parliament & 2 others v Attorney General & 2 others
    [2012] eKLR
  • Ntusiet Aderson Kishaine & 2 others v Nelson Sairowa Kima & 3 others
    [2017] eKLR
  • Ibrahim Mohamud Ibrahim & another v Kenya Wildlife Service & 4 others
    [2019] eKLR
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010 (petition for enforcement of bill of rights; employment-related matter)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Ali v Ministry of Interior and Coordination of National Government & 3 others; Public Service Commission & another (Interested Parties) (Petition E183 of 2021) [2022] KEELRC 1460 (KLR)", Case Analysis (2022). Petition dated November 18, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1460/eng@2022-06-15

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