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ELRCDismissedConstitutional Petition No. 243 of 2022 (consolidated with Petition Nos. E080 of 2022 and E089 of 2022)· [2023] KEELRC 2010 (KLR)

Havi & 2 others v Kenya Medical Supplies Authority & 4 others; Ramadhani (Interested Party) (Petition E080 & E089 of 2022 & 16 of 2023 (Consolidated)) [2023] KEELRC 2010 (KLR)

Employment and Labour Relations Court
27 July 2023
MNMathews N. Nduma
5,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court upheld KEMSA's CEO appointment, finding the appointee qualified and the recruitment lawful, with no public participation required.

What this practically means

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Executive summary

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Three consolidated constitutional petitions challenged the appointment of Terry Kiunge Ramadhani as Chief Executive Officer of the Kenya Medical Supplies Authority (KEMSA) following a recruitment advertised on 5/3/2022. The petitioners alleged the process was uncompetitive, secretive, devoid of public participation and tainted by conflict of interest because the appointee had chaired KEMSA's Human Resource Committee until shortly before the recruitment, and contended that her Bachelor of Education degree did not meet the minimum qualifications under Section 8(2) of the KEMSA Act. They sought declarations of unconstitutionality, certiorari, mandamus compelling fresh recruitment and disclosure of information under Article 35, and costs. The respondents and the 1st Interested Party maintained the process was open, competitive and compliant with the Act, Mwongozo and Career Guidelines, and that her degree comprised coursework in business, finance, management and economics, hence a related field. The Public Service Commission, though generally critical of the process, did not specify in evidence how the appointee participated in her own recruitment. The court found the petitioners failed to discharge the burden of proof on a balance of probabilities on all three issues: the appointee was qualified, was not conflicted, and the position was widely advertised. The court held that no provision mandates direct public participation in the recruitment of a parastatal CEO, distinguishing the authorities relied upon. The petition was dismissed in its entirety with each party bearing its own costs as public litigation.

Key legal issues

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01

Whether the 1st Interested Party met the minimum academic qualification under Section 8(2) of the KEMSA Act

Holding

She did; her Bachelor of Education (Home Economics) comprised at least 21 courses in business administration, finance, management and economics, making it a degree in a related field

Reasoning

The court held that the petitioners failed to prove on a balance of probabilities that the 1st Interested Party's Bachelor of Education degree was not in a related field within Section 8(2). Her transcript showed at least 21 courses relevant to business administration and finance. Her prior service as Human Resource Director at KEMSA added to, rather than subtracted from, her credentials.

p. 10
02

Whether the recruitment process was flawed by conflict of interest and secrecy

Holding

No; the petitioners failed to adduce tangible evidence that the 1st Interested Party was conflicted or involved in her own recruitment

Reasoning

Serious allegations of conflict of interest required tangible evidence. The 1st Interested Party demonstrated she resigned on 5/3/2022, did not design the job description, and took no part in the advertisement, shortlisting, interviews or appointment, which were conducted by named Board members and the Cabinet Secretary. The PSC deposition did not specify what aspects of recruitment she influenced.

p. 10
03

Whether there was required public participation in the recruitment

Holding

No; Article 232(1)(j) does not mandate direct public involvement in recruiting a parastatal CEO

Reasoning

Article 232(1)(g) requires fair competition, merit and inclusiveness in appointments, which were met, while Article 232(1)(j) on involvement of the people relates to policy-making, not individual recruitments. Direct public participation is mandatory for legislation and policy, not for recruiting a CEO of a parastatal, absent a specific provision.

p. 11
04

Whether the respondents violated Article 35 by not disclosing recruitment information

Holding

No violation proved; the position was widely advertised and the later information request could not prove the process was flawed

Reasoning

The CEO position was advertised in the Standard Newspaper, the KEMSA website and Government sites, so the process was not secret. The petitioners never sought information while the recruitment was underway; a post-facto request cannot demonstrate that the concluded process was unlawful.

p. 11

Legal principles established

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  • A first degree in a field related to those listed in Section 8(2) of the KEMSA Act is assessed by the content of the courses taken, not merely the title of the degree
  • It is not unlawful to appoint or promote an internal candidate who is suitable and qualified
  • Absent a specific statutory provision requiring direct public participation in the recruitment of a parastatal CEO, lack of such participation cannot nullify the appointment
  • Precedents on public participation must be applied to the facts, law and policy of each case

Court orders

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  1. 1.The petition was dismissed in its entirety for lack of merit
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Kenya Medical Supplies Authority ActSections 8(1), 8(2), 8(4)
  • Constitution of Kenya, 2010Articles 8, 10, 35, 47, 73(2), 232(1)(g) and (j), 234(2)(d), 252(1)(a)
  • State Corporation ActSection 5(3)
  • Evidence Act, Cap. 180Sections 108 and 109
  • Leadership and Integrity Act, No. 19 of 2012Sections 8, 10, 11, 13, 16, 22, 24
  • Public Service Commission Act, 2017Section 37; Part IX
  • Public Service (Values and Principles) Act, No. 1A of 2015
  • Fair Administrative Action Act
  • Public Finance Act 2012
  • Public Procurement and Asset Disposal Act of 2015
  • Mwongozo Code of Governance of State CorporationsClause 1.118 and Attachment (1)

Cases cited (8)

  • Chama Cha Mawakili (CCM) versus Chairperson Independent Electoral and Boundaries Commission & 2 others
    2020 eKLR
  • County Government of Nyeri and Another v Cecilia Wangechi Ndung'u
    [2015] eKLR
  • Anarita Karimi Njeru v Attorney General [No. 11/1979] KCR 154
  • Hon Philomena Mwilu v the Director of Public Prosecution & 4 others
    [2019] eKLR
  • Felix Kiprono Matagei v the Honourable Attorney General & 3 others
  • Abdi Ahemed Abdi v Cabinet Secretary Interior and Co-ordination of National Government and 7 others
    HC Petition No. 238 of 2015
  • Henry Mutundu v Chairperson Independent Electoral and Boundaries Commission and Another; Anthony General (interested party)
    [2019] eKLR
  • Legeus Lomasi Mudegu v Board, Kenya Water Towers Agency
    [2020] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 10, 35, 47, 73 and 232 of the Constitution), petition transferred from the High Court to the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "Havi & 2 others v Kenya Medical Supplies Authority & 4 others; Ramadhani (Interested Party) (Petition E080 & E089 of 2022 & 16 of 2023 (Consolidated)) [2023] KEELRC 2010 (KLR)", Case Analysis (2023). Constitutional Petition No. 243 of 2022 (consolidated with Petition Nos. E080 of 2022 and E089 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2010/eng@2023-07-27

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