Njoroge v Cabinet Secretary, Ministry of Education & 3 others; Bunyi & another (Interested Parties); Ochich (Intended Interested Party) (Petition E015 of 2022) [2023] KEELRC 451 (KLR)
The bottom line
#Kenya's Employment Court found UNESCO commission appointments irregular but only revoked two board positions, refusing refunds and early exit due to the petitioner's delay.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioner
The Petitioner has standing under Articles 22(1) and 258(2)(c) of the Constitution; the objection to his standing fails
Article 22(1) permits 'every person' to institute proceedings claiming a right or fundamental freedom has been denied, violated or infringed or threatened, without restriction, and Article 258(2)(c) allows a person acting in the public interest. Allegations that the Petitioner was a proxy of the former chairperson did not defeat standing since the constitutional scheme imposes no such restriction.
Legality of the 4th Respondent's appointment and re-appointment as Secretary-General/CEO
The appointment (2013) and re-appointment (2018) were irregular for want of a competitive, transparent and merit-based process under Article 232, but the Court declined to revoke them given the imminent expiry of the term and the Petitioner's delay
Section 17 of the Kenya National Commission for UNESCO Act empowers the Cabinet Secretary, in consultation with the Board, to appoint the Secretary-General. As a public-service appointment, Article 232 values apply. There was no advertisement, shortlist, interview minutes or Board recommendation exhibited. However, since the second term ends May 2023 and the petition was filed late, revocation would be imprudent.
Appointment of the Interested Parties as Board members under section 6(1)(g)
The appointments of the 1st and 3rd Interested Parties were irregular and were revoked; the 2nd Interested Party's appointment was regular and stands
Section 6(1)(g) requires nomination by the organisations specified in the First Schedule before Cabinet Secretary appointment. The 1st Interested Party was appointed by the Vice Chancellor of Kenyatta University, not the appointing authority. No nomination or appointment documents explained the 3rd Interested Party's appointment. The 2nd Interested Party was properly nominated by the TSC after a request by the Cabinet Secretary.
Remedies, including refund of emoluments and terminal leave
Refund orders refused (disciplinary matter); terminal-leave order refused; successor recruitment process directed; each party to bear own costs
Although irregular appointments were established in part, the Court tempered remedies: it allowed the CEO to serve out her term given laches, refused refund orders as a matter for disciplinary processes, and directed the 1st and 3rd Respondents to initiate the succession/recruitment process for the outgoing CEO.
Legal principles established
#- Article 22 and 258 of the Constitution confer standing on any person, acting on their own interest or in the public interest, to institute proceedings to enforce the Bill of Rights
- Appointments of public officers, including Secretaries-General/CEOs of state corporations, must comply with the values and principles of public service under Article 232, including fair competition and merit
- Board members under section 6(1)(g) of the Kenya National Commission for UNESCO Act must be nominated by the organisations specified in the First Schedule before appointment by the Cabinet Secretary; appointments not so made are irregular
- A court will not grant relief where the petitioner is guilty of laches and the term challenged is about to lapse
Court orders
#- 1.The appointment of the 1st Interested Party (Prof. Grace Bunyi) and the 3rd Interested Party (Patrick Ochich) is declared irregular and revoked forthwith
- 2.The appointment of the 2nd Interested Party (Ms. Antonina Lentoijoni) is found regular and stands
- 3.The prayer for refund of monies earned by the interested parties is declined
- 4.The 4th Respondent is allowed to serve her term as CEO to its expiry in May 2023 with no option of renewal
- 5.The 3rd and 1st Respondents are directed to put in place the process for the appointment of the successor to the 4th Respondent
- 6.Each party to bear its own costs
- Jurisdiction invoked
- Articles 22(1), 23 and 258 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); Employment and Labour Relations Court jurisdiction over employment/public officer disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Cabinet Secretary, Ministry of Education & 3 others; Bunyi & another (Interested Parties); Ochich (Intended Interested Party) (Petition E015 of 2022) [2023] KEELRC 451 (KLR)", Case Analysis (2023). Petition (ELRC), judgment delivered 21 February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/451/eng@2023-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.