Ahmed & 3 others v Governor, Mandera County Government & 5 others; Elias & 32 others (Interested Parties) (Employment and Labour Relations Petition E199 of 2022 & Petition E203 of 2022 (Consolidated)) [2023] KEELRC 556 (KLR)
The bottom line
#A Kenyan court blocked Mandera County's Chief Officer appointments, ruling the hiring process showed ethnic imbalance and lacked transparency.
What this practically means
#Executive summary
#Key legal issues
#Sub-tribe/clan balance in County appointments
Petitioners established a prima facie case of sub-tribe/clan imbalance, over half the nominees being from one sub-tribe, and Respondents failed to explain the demography
Section 65(1)(e) of the County Governments Act requires at least 30% of entry-level vacancies to go to non-dominant ethnic communities. In Mandera, 30% of Chief Officer vacancies ought to have been reserved for non-Somali candidates. The Respondents gave no panoramic view of the County's sub-tribe/clan demography, and predominance of one group risks exclusion, marginalization and ethnic strife.
Transparency in creation of 5 additional vacancies
Creation of 5 new departments by Executive Order after advertisement closed, without fresh advertisement, was not transparent and supported confirmation of the conservatory order
Once fresh openings were created after 28 vacancies were advertised and closed, they ought to have been publicized and competitively filled under Section 66 of the County Governments Act. Section 46 permits the Executive Committee to establish or abolish departments, but Section 59(1)(a) reserves establishment and abolishment of public offices to the County Public Service Board. Creating vacancies by Executive Order invites suspicion of allocation to persons of choice.
Meritocracy and access to information
Prima facie evidence that transparency and merit under Article 232 were not given adequate consideration; Respondents failed to supply information requested under the Access to Information Act
The County Secretary's explanation of nominee Miski Hassan Abdi's 10 years' experience was unclear, and no response was given regarding other nominees flagged for integrity concerns. Respondents should have supplied information to enable the Petitioner to prepare for County Assembly hearings, and the objection that nominees would be condemned unheard failed because all nominees were joined as Interested Parties.
Two-thirds gender rule
Complied: 11 of 33 nominees are women, exactly one-third
Article 27(8) requires that not more than two-thirds of members of elective or appointive bodies be of the same gender. The letter transmitting nominees to the County Assembly listed gender details; 11 women of 33 is exactly one-third, so prima facie no breach was demonstrated.
Affirmative action versus meritocracy
Meritocracy should not override affirmative action; the law permits public institutions not to unduly rely on merit to achieve gender, disability and ethnic balance
The Public Service (Values and Principles) Act, 2015 gives effect to Article 232 by allowing departure from pure merit to secure representation of disadvantaged groups. Pure meritocracy can accentuate discrimination — 'The Paradox of Meritocracy'.
Legal principles established
#- Conservatory orders should be granted on the inherent merit of the case, bearing in mind public interest, constitutional values, proportionate magnitudes and priority levels, per Munya
- If restructuring of County departments creates additional public service vacancies, the vacancies must be advertised and competitively filled; establishment and abolishment of public offices is the mandate of the County Public Service Board
Court orders
#- 1.A Conservatory Order restraining the Respondents from appointing/employing any of the Interested Parties/Nominees to the positions of Chief County Officers, Mandera County, pending hearing and determination of the consolidated Petitions
- 2.Costs in the cause
- Jurisdiction invoked
- Articles 10, 27, 54, 232 of the Constitution; Section 45, County Governments Act No 17 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed & 3 others v Governor, Mandera County Government & 5 others; Elias & 32 others (Interested Parties) (Employment and Labour Relations Petition E199 of 2022 & Petition E203 of 2022 (Consolidated)) [2023] KEELRC 556 (KLR)", Case Analysis (2023). E199, E202 and E203 of 2022 (Consolidated); Petition 202 withdrawn. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/556/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.