Hussein & another v Governor, County Government of Mandera & 2 others; Somo (Interested Party) (Petition E143 of 2023) [2023] KEELRC 2656 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to Mandera's County Attorney appointment, holding that skipping the public vetting objection process barred the court challenge.
What this practically means
#Executive summary
#Key legal issues
#Good faith of the petition
The petition was not brought in bad faith merely because of the petitioners' disciplinary history and separation from the county government's service
The Court found the impugned transaction (nomination, approval and appointment) independent of and remote from the disciplinary proceedings against the petitioners. Bad faith entails dishonesty, fraud or unfair dealing in the transaction impugned, and none was established regarding the appointment. However, the petitioners' unexplained failure to object during vetting later informed the justiciability analysis.
Justiciability
The petition was not justiciable because the petitioners failed, without explanation, to object during the public approval hearings and filed suit nine months after the appointment
The County Assembly's approval hearing was the prescribed statutory platform for objections under the Public Appointments (County Assemblies Approval) Act, 2017. Unexplained failure to use that platform, blended with bad faith, rendered the petition unjusticiable. The Court also relied on want of exhaustion of the statutory procedure, following its earlier ruling in the Principal Secretaries case, and on mootness since the interested party had since attained five years standing.
Computation of five years standing as an advocate
Five years standing is reckoned from the date of signing the roll of advocates (admission), not from the practising certificate date; the interested party strictly lacked five years standing at appointment but had attained it by effluxion of time
Under sections 15 and 24 of the Advocates Act, admission to and signing of the roll signifies qualification, and the practising certificate provisions concern validity of the certificate, not standing. The parties were effectively agreed that the period runs from 27.03.2018, so the qualification question became moot by 27.03.2023.
Remedies
All remedies sought were refused; the declarations, certiorari and mandamus were barred by justiciability, proportionality, reasonableness and prudent use of public resources
Since the petition was unjusticiable and the qualification defect had been cured by effluxion of time, quashing the appointment would be futile - the respondents could lawfully recommence and reappoint the same person at public expense. The refund claim failed because no statutory or public duty to refund was established, the remuneration being due consideration for services rendered.
Legal principles established
#- In computing whether a candidate is an advocate of at least five years standing, the period is reckoned from the date the candidate signed the roll of advocates, not from the date of issue of a practising certificate
- Where a statute prescribes a procedure for objecting to an appointment (approval hearings), failure to invoke it bars a later court challenge; failure to promptly invoke the prescribed procedure amounts to a bar
- Mandamus will not issue unless the applicant establishes a public duty which the respondent has failed to perform despite demand, and enforcement would not be futile
Court orders
#- 1.Dismissal of the petition
- 2.Each party to bear own costs of the proceedings
- Jurisdiction invoked
- Articles 73 and 232 of the Constitution of Kenya 2010 read with the Office of the County Attorney Act, 2020 and the Public Appointments (County Assemblies Approval) Act, 2017
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.
- Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 1631 (KLR)[2024] KEELRC 1631 (KLR)24 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Hussein & another v Governor, County Government of Mandera & 2 others; Somo (Interested Party) (Petition E143 of 2023) [2023] KEELRC 2656 (KLR)", Case Analysis (2023). Petition dated 20.07.2023 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2656/eng@2023-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.