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ELRCDismissedPetition dated September 6, 2021· [2022] KEELRC 4160 (KLR)

Wafula v Public Service Commission & 5 others (Employment and Labour Relations Petition E022 of 2021) [2022] KEELRC 4160 (KLR)

Employment and Labour Relations Court
20 September 2022
HWHellen Wasilwa
2,344 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 dismissed a petition challenging an acting land registrar's appointment because the petitioner brought no evidence, such as an appointment letter, to prove it.

What this practically means

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Executive summary

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Aggrey Wafula petitioned the Employment and Labour Relations Court seeking declarations that the appointment of the 5th Respondent as acting Chief Land Registrar while a substantive holder, Sarah Mwendwa, existed was unconstitutional and unlawful under Sections 13 and 14 of the Land Registration Act and Articles 10, 41, 73, 75, 232 and 236 of the Constitution. He further sought orders of prohibition against the Respondents and the 5th Respondent, a declaration that the 4th Respondent, Anne W Kariithi, had contravened Chapter 6 and should be removed, a permanent injunction restraining interference with Sarah Mwendwa's employment, and costs. The Respondents opposed, raising lack of locus standi under Article 22(2), the absence of authority from Ms Mwendwa, sub judice as against Nairobi ELRC Petition 24 of 2020, and want of specificity and evidence. The 4th and 5th Respondents both denied that any appointment of an acting Chief Land Registrar took place, and the 6th Respondent's evidence indicated Ms Mwendwa remained in office. The court found there was no appointment letter or other specific evidence proving the alleged appointment or the alleged interference with the substantive holder's duties. It held the petition unsupported and dismissed it in its entirety, with no order of costs, on September 20, 2022.

Key legal issues

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01

Locus standi under Article 22(2)

Holding

The court did not make a definitive finding on standing, the petition having failed on the evidence, though it was strongly urged that a petitioner suing on behalf of a named office holder must show authority and a relationship clothed with standing.

Reasoning

The Respondents contended that the Petitioner was neither an employee of the 6th Respondent nor authorised by Sarah Mwendwa to sue on her behalf, and thus failed the Article 22(2) threshold. The court's determination rested instead on the failure of proof of the alleged appointment, making a specific standing ruling unnecessary.

p. 5
02

Whether the 5th Respondent was appointed Acting Chief Land Registrar while a substantive holder existed

Holding

The appointment was not proved; both the 4th and 5th Respondents denied it and no appointment letter was produced.

Reasoning

The Petitioner's core contention was that the Respondents frustrated Sarah Mwendwa by appointing David Nyandoro in an acting capacity. The 5th Respondent and the 4th Respondent both denied the appointment. No appointment letter or other specific evidence was exhibited. The court found the petition unsupported and dismissed it.

p. 5
03

Whether the Respondents interfered with Sarah Mwendwa's employment

Holding

No evidence of interference was tabled; the marking on her door and a training memo suggested she remained in office.

Reasoning

The Respondents' evidence, including a bailiff's exhibit and a memo dated October 15, 2021 inviting the Chief Land Registrar to training, indicated she was still in office. The court found the alleged frustration and closure of office not demonstrated, and dismissed the petition with no order of costs.

p. 5

Legal principles established

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  • A petitioner alleging constitutional violations must adduce specific evidence to prove the allegations; unproved allegations cannot support constitutional relief

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.No order of costs

Authorities

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Legislation

  • Land Registration ActSections 13 and 14
  • Constitution of Kenya 2010Articles 10, 22, 22(2), 23, 27, 41, 73, 73(1)(b), 73(2), 75, 129, 232, 236, 259
  • Evidence ActCap 80 (he who alleges must prove)

Cases cited (4)

  • Anarita Karimi Njeru V Republic
    (1979) 1 KLR 154
  • Mumo Mutemu V Trusted Society of Human Rights Alliance
    Civil Appeal No 290 of 2012
  • East Africa Industries V Trufoods
    EA 420
  • Giella V Cassman Brown
    (1979) EA
Jurisdiction invoked
Articles 22 and 23 of the Constitution 2010 (enforcement of Bill of Rights); reliefs grounded on Articles 10, 41, 73, 75, 232 and 236

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, "Wafula v Public Service Commission & 5 others (Employment and Labour Relations Petition E022 of 2021) [2022] KEELRC 4160 (KLR)", Case Analysis (2022). Petition dated September 6, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4160/eng@2022-09-20

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