Benjamin v Nakhumicha, Cabinet Secretary, Ministry of Health & 15 others (Constitutional Petition E077 of 2023) [2023] KEELRC 1560 (KLR)
The bottom line
#Kenya's Employment Court stopped a Health Ministry move to replace the Pharmacy and Poisons Board, ruling only the President can revoke state corporation board appointments.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC in the absence of a direct employer-employee relationship with the petitioner
The Court has jurisdiction; the dispute concerns contracts of service of the 1st interested party, Dr. Jacinta Wasike and other employees, and the petitioner is entitled to litigate in public interest under Articles 22, 23 and 258 of the Constitution and section 12 of the ELRC Act.
The Court found actual contracts of service exist between the 1st interested party and the 2nd respondent, and between the 2nd respondent and Dr. Jacinta Wasike and other potential candidates for the acting CEO position. Section 12(2) permits any person to lodge a claim where the dispute concerns formulation, interpretation and implementation of terms and conditions of service arising pre, post or during a contract. Public interest litigation is also permissible so long as the dispute relates to employment and labour relations under Article 162(2)(a). Both preliminary objections were therefore dismissed with costs.
Validity of the revocation of the appointment of the 2nd to 7th interested parties by Gazette Notice No. 637
Prima facie the revocation was ultra vires; the 1st respondent appears to have usurped the President's power under section 7(3) of the State Corporations Act, and section 51(1) of the Interpretation and General Provisions Act does not apply.
Relying on Ronoh Sitienei, the Court held that once board members of a state corporation are appointed they serve their statutory tenure and can only be removed by the President under section 7(3) of the State Corporations Act upon stated reasons. The maxim generalia specialibus non derogant applies: the specific provision prevails over the general one in section 51 of the Interpretation and General Provisions Act. Accordingly, the Cabinet Secretary lacked power to revoke the appointments, making the resulting vacancies and new appointments irregular.
Validity of the appointment of new Board members by Gazette Notice No. 2116 and of the 1st interested party as acting CEO
Prima facie the new appointments were incompetent - accruing from irregular vacancies and made without nominations by the relevant statutory nominating authorities; but no prima facie case was established to keep the 1st interested party out of office pending full hearing.
Because the revocation of the 2nd to 6th interested parties was prima facie irregular, the vacancies filled by Gazette Notice No. 2116 accrued irregularly. The petitioner also showed the appointments were made without nominations from the relevant statutory bodies. On the 1st interested party's tenure, the Court noted confusion over whether he was acting or substantive, the absence of his exhibited contract, and the 6-month extension by a quorate Board; these issues were best resolved at full hearing, so the extension was left undisturbed.
Legal principles established
#- Any person may move the ELRC under section 12(2) of the ELRC Act and Articles 22, 23 and 258 of the Constitution in public interest litigation provided the dispute relates to employment or labour relations or related matters; absence of a direct employer-employee relationship with the petitioner does not oust jurisdiction.
- Once board members of a state corporation are appointed, they serve their statutory term and their appointment may be revoked only by the President under section 7(3) of the State Corporations Act; the general power in section 51(1) of the Interpretation and General Provisions Act does not apply.
- Conservatory orders are granted on the inherent merit of a case bearing in mind the public interest, constitutional values and proportionate magnitudes, and require an arguable prima facie case with likelihood of success and prejudice if not granted.
Court orders
#- 1.Conservatory order staying and suspending Gazette Notices No. 637 dated 19.01.2023 and No. 2116 dated 23.02.2023 purporting to revoke the appointment of the 2nd to 7th interested parties and appoint a replacement Board, pending hearing and determination of the petition
- 2.The Board of Management of the 2nd respondent ante the impugned Gazettement (2nd to 7th interested parties) is at liberty to independently consider the status of service of the 1st interested party and may appoint an acting Registrar/CEO from among current employees holding substantive management positions, or substantively fill accruing vacancies in accordance with law, pending the petition
- 3.Costs of the application in the cause
- 4.The preliminary objections dismissed with costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act; Articles 22, 23 and 258 of the Constitution
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, "Benjamin v Nakhumicha, Cabinet Secretary, Ministry of Health & 15 others (Constitutional Petition E077 of 2023) [2023] KEELRC 1560 (KLR)", Case Analysis (2023). Petition No. E 018 of 2023 (Nairobi) - Notice of Motion dated 25.04.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1560/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.