Republic v Kenya Rural Roads Authority; Muthiani (Exparte Applicant) (Judicial Review Application E013 of 2022) [2023] KEELRC 1377 (KLR)
The bottom line
#Kenya's Employment Court quashed a State Corporation director's appointment because the job was advertised for only 13 days instead of the required 21.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the 21-day advertisement rule to State Corporations
The 21-day rule in Section B.4 of the Public Service Manual applies to the Respondent; its internal Manual cannot displace the minimum standards.
Article 260 defines the Public Service to include individuals performing a state function within a State organ, capturing State Corporations. The Public Service Manual, generated under the PSC's constitutional mandate in Article 234(2), sets minimum norms and standards which State Corporations may customise but not disregard. The Respondent gave only 13 days and no urgency justified shortening the period.
Bad faith and predetermined outcome in the recruitment
The recruitment was a sham aimed at the coronation of the acting Director-General, conducted in bad faith.
The advertisement was placed the day after the Kenya Roads (Amendment) Act 2022 conferred eligibility on Kandie; only 9 candidates applied, 3 were shortlisted, and appointment, gazettement and contract execution followed within a day of interviews. No Board minutes evaluating candidates were produced, indicating a predetermined outcome abrogating merit and fair competition under Article 232(1)(f).
2/3rd gender rule under Article 27(8)
The ground failed; the Respondent is a separate entity with a single Director-General position which cannot be split among genders.
Each of the three Roads Authorities is a separate body corporate with its own constitutive law and human resource instruments. Lumping the Respondent with the other two Authorities for gender-composition purposes was not justified, so Article 27(8) did not require the appointment of a female Director-General here.
Non-disclosure of specific remuneration in the advertisement
The ground failed; it was not mandatory to state specific figures, and the advertisement's indication that salary would be determined by the Board guided by SCAC and SRC sufficed.
Section 37(4) of the Public Service Commission Act requires disclosure of remuneration payable but does not impose an obligation to give specific figures. The advertisement informed applicants how remuneration would be determined, which satisfied the statutory requirement.
Interview notice under clause 2.18.2 of the Respondent's Manual
No breach; notification on 5th April 2022 for interviews on 12th April 2022 gave a clear 7 days.
Clause 2.18.2 requires at least one week's notice of interview date, time and venue. Counting 5th to 12th April 2022 yielded a clear 7 days, satisfying the clause.
Legal principles established
#- An internally generated human resource manual of a State Corporation cannot dislodge the minimum norms and standards set by the Public Service Manual, including the 21-day advertisement rule.
- State Corporations fall within the Public Service as defined under Article 260 of the Constitution and are bound by the 21-day advertisement rule.
- Urgency justifying a shortened advertisement period must be shown at the time of advertisement; there was no urgency shown.
- A recruitment process with a predetermined outcome is a sham and violates fair competition and merit under Article 232(1)(f).
- The presumption of regularity is rebuttable by clear evidence from the challenger.
Court orders
#- 1.An order of Certiorari is hereby issued, removing into this Court and quashing Gazette Notice No. 4309 of 13th April 2022, appointing Philemon Kiprop Kandie, as the Director-General of the Respondent.
- 2.No order on the costs.
- Jurisdiction invoked
- Judicial review jurisdiction (order of certiorari) over public-law employment decision; leave granted 17th June 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kenya Rural Roads Authority; Muthiani (Exparte Applicant) (Judicial Review Application E013 of 2022) [2023] KEELRC 1377 (KLR)", Case Analysis (2023). ELRC Judicial Review E-Learning Application dated 20th June 2022 (E&LRC JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1377/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.