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ELRCPartially AllowedELRC Judicial Review E-Learning Application dated 20th June 2022 (E&LRC JR)· [2023] KEELRC 1377 (KLR)

Republic v Kenya Rural Roads Authority; Muthiani (Exparte Applicant) (Judicial Review Application E013 of 2022) [2023] KEELRC 1377 (KLR)

Employment and Labour Relations Court of Kenya
31 May 2023
4,902 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 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

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Executive summary

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The Ex-Parte Applicant, a public interest litigant, sought certiorari to quash Gazette Notice No. 4309 of 13th April 2022 appointing Philemon Kiprop Kandie as Director-General of the Kenya Rural Roads Authority. He alleged procedural impropriety: breach of the 21-day advertisement rule in Section B.4 of the Public Service Manual (only 13 days given); failure to advertise on the Public Service Commission website and radio contrary to Section 37(1) of the Public Service Commission Act; omission of remuneration details; breach of the one-week interview notice; non-observance of the 2/3rd gender rule under Article 27(8); and bad faith, the process being a scheme to entrench Kandie, who had acted in the role for 1 year and 8.5 months contrary to the 6-month statutory limit and only became qualified upon the Kenya Roads (Amendment) Act 2022 commencing the day before advertisement. The Respondent contended it was autonomous, bound only by its own HR Manual, and acted in urgency and good faith. The court held that State Corporations fall within the Public Service under Article 260 and that internal manuals cannot displace the minimum standards in the Public Service Manual, finding the 21-day rule breached with no urgency shown. It found the recruitment a sham with a predetermined outcome amounting to bad faith. The gender-rule, remuneration and interview-notice grounds failed. Certiorari issued quashing the appointment; there was no order on costs.

Key legal issues

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01

Applicability of the 21-day advertisement rule to State Corporations

Holding

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.

Reasoning

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.

p. 8
02

Bad faith and predetermined outcome in the recruitment

Holding

The recruitment was a sham aimed at the coronation of the acting Director-General, conducted in bad faith.

Reasoning

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).

p. 9
03

2/3rd gender rule under Article 27(8)

Holding

The ground failed; the Respondent is a separate entity with a single Director-General position which cannot be split among genders.

Reasoning

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.

p. 7
04

Non-disclosure of specific remuneration in the advertisement

Holding

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.

Reasoning

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.

p. 7
05

Interview notice under clause 2.18.2 of the Respondent's Manual

Holding

No breach; notification on 5th April 2022 for interviews on 12th April 2022 gave a clear 7 days.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.No order on the costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 27(8)
  • Constitution of KenyaArticle 232(1)(f)
  • Constitution of KenyaArticle 234(2)
  • Constitution of KenyaArticle 260
  • Kenya Roads ActSections 6(1), 13(1)
  • Kenya Roads (Amendment) ActNo. 3 of 2022
  • Public Service Commission ActSections 34, 37(1), 37(4)
  • Public Service (Values and Principles) ActSection 10(1)
  • Human Resource Policies and Procedures Manual for the Public ServiceSection B.4(1)
  • Guidelines on the Terms and Conditions of Service for State CorporationsClause 15, Section B
  • Electronic Case Management Practice DirectionsPractice Direction 6(2)

Cases cited (9)

  • R v. Communications Authority of Kenya, Ex-Parte Information Communication Technology Association of Kenya
    [2021] e-KLR
  • Rahab Wanjiru Njuguna v. Inspector-General of Police and Another
    [2013] e-KLR
  • Wambua Maithya v. Pharmacy and Poisons Board; Pharmaceutical Society of Kenya and 2 Others [Interested Parties]
    [2019] e-KLR
  • R. v. Anti-Counterfeit Authority Ex-Parte Caroline Mangata t/a Hair Works Saloon
    [2019] e-KLR
  • R. v. Kenya Institute of Supplies Management Ex-Parte Mwaniki Gachumba
    [2019] e-KLR
  • Khakasa Oyatsi v. Judicial Service Commission
    Petition No. E111 of 2021
  • R. v. Commissioner General KRA Ex-Parte Sanofi Aventis Limited
    Nairobi H.C JR Review No. 117 of 2017
  • Kibos Distillers Limited v. Benson Ambuti Adega & 3 others
    Civil Appeal No. 153 of 2019
  • Pastoli v. Kabale District Local Government Council and Others
    [2008] 2 E.A 300
Jurisdiction invoked
Judicial review jurisdiction (order of certiorari) over public-law employment decision; leave granted 17th June 2022

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, "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.