Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition dated 05.01.2023 (Nairobi)· [2023] KEELRC 1144 (KLR)

Kinyua v Attorney General; National Health Insurance Fund & 3 others (Interested Parties) (Petition E001 of 2023) [2023] KEELRC 1144 (KLR)

Employment and Labour Relations Court
12 May 2023
2,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a challenge to the removal of NHIF board members because the petitioner had no evidence proving the removals were unconstitutional.

What this practically means

#

Executive summary

#
Patrick Kinyua petitioned the Employment and Labour Relations Court challenging Gazette Notice No. 15799 of 23.12.2022, which revoked the appointments of the Chairperson and two Members of the NHIF Management Board before the expiry of their terms. He sought a declaration that the removals were unconstitutional and an order of judicial removal quashing the impugned Gazette Notices, alleging violations of Articles 10, 41, 47, 50 and 236 of the Constitution. The respondent and the 1st interested party opposed through grounds of opposition and a preliminary objection, contending that the petitioner lacked standing under Article 22(2)(c), that the dispute was a private-law matter, and that under section 51(1) of the Interpretation and General Provisions Act the power to appoint includes the power to dismiss; they also relied on the Court of Appeal decision in Rift Valley Water Services Board v Asanyo to argue the court lacked jurisdiction. The Court found the petitioner had standing under Article 258(1) as the appointments and revocations arose under the NHIF Act and the petition was brought in the public interest. On jurisdiction, it distinguished the company-director authorities, holding that board members of a statutory body are public or state officers engaged in employment, with the pleasure doctrine replaced by due process under Article 236. However, the petition failed because the alleged procedural improprieties and violations were not established by affidavit or other evidence; the affected parties, though served, did not participate, reinforcing the finding that the allegations were vacuous. The petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Locus standi of the petitioner in public interest litigation

Holding

The petitioner had the necessary standing, having alleged unconstitutional revocation of appointments under the NHIF Act and acting in the public interest

Reasoning

The respondent argued the dispute was private in nature and that Article 22(2)(c) could not be used to sue for named public officers without instructions. The Court held that because the appointments and revocations were made under the NHIF Act, the allegations engaged the Constitution, and Article 258(1) entitled the petitioner to sue. Acting in the public interest was established, so no bar to standing arose.

p. 3
02

Whether the dispute concerns an employment relationship, given the Rift Valley Water Services Board authority

Holding

The dispute relates to employer-employee relationship because the 2nd to 4th interested parties were public/state officers under the NHIF Act and State Corporations Act, distinguishable from company directors under the Companies Act

Reasoning

The Court of Appeal in Rift Valley Water Services Board held company directors are not employees, so the Employment Act did not apply. The Court distinguished that holding as confined to directors under the Companies Act. Guided by Narok County Government v Birir, it held public officers are servants of the people and due process under Article 236 applies, so state officers are engaged in employment under constitutional and statutory frameworks.

p. 5
03

Whether the revocation of the 2nd to 4th interested parties' appointments violated Articles 10, 41, 47, 50 and 236

Holding

No violation was established; the petition failed

Reasoning

The petitioner proved only the appointment and revocation by Gazette Notices. The pleaded procedural improprieties and substantive grounds were not supported by affidavit or other evidence. The affected interested parties were served but chose not to participate, which reinforced the conclusion that the allegations were vacuous. A court cannot presume violations without material facts and evidence.

p. 5

Legal principles established

#
  • Every person may institute proceedings claiming a contravention of the Constitution under Article 258(1), and a petitioner alleging unconstitutional revocation of appointments under a statute can establish public interest standing
  • A board member or director in the public service, being a public or state officer, is distinguishable from a director of a company registered under the Companies Act; the pleasure doctrine has been replaced by due process under Article 236
  • Alleged constitutional violations must be established by supporting material facts and evidence; a court will not make presumptive findings in favour of violations

Court orders

#
  1. 1.Judgment entered for the respondent against the petitioner for the dismissal of the petition
  2. 2.Each party to bear own costs of the proceedings

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1) & (2), 23, 41, 47, 50, 156, 236, 258(1), 259, 260
  • National Health Insurance Fund (NHIF) Act
  • Interpretation and General Provisions ActSection 51(1)
  • State Corporations Act
  • Companies Act
  • Employment Act

Cases cited (4)

  • Rift Valley Water Services Board & 2 others v Geoffrey Asanyo & 2 others
    Nakuru Civil Appeal No. 61 of 2015
  • Narok County Government and Another v Richard Bwogo Birir and Another
    [2015] 5JELR 104466 (CA)
  • McMillan v Guest
    [1942] AC p. 561
  • Parsons v Albert J. Parsons and Sons Ltd
    [1979] ICR p.271
Jurisdiction invoked
Articles 22(1) & (2), 23 and 258 of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kinyua v Attorney General; National Health Insurance Fund & 3 others (Interested Parties) (Petition E001 of 2023) [2023] KEELRC 1144 (KLR)", Case Analysis (2023). Petition dated 05.01.2023 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1144/eng@2023-05-12

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