Rukaria v Attorney General; Debasso & another (Interested Parties) (Petition 2 of 2023) [2023] KEELRC 2824 (KLR)
The bottom line
#The Employment Court upheld a state corporation chairperson's revocation because he had signed an appointment letter stating he served at the Government's discretion, waiving key legal protections.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over revocation of appointment of a state corporation chairperson
The court has jurisdiction; the petitioner was a public officer and an employee as remuneration by way of honorarium and allowances amounted to a wage or salary
The court found the petitioner remunerated out of public resources through a fixed monthly honorarium and piece-rate sitting allowances, satisfying the definitions of employee under the Employment Act and Labour Relations Act. Relying on Postal Corporation of Kenya v Andrew K Tanui, allowances form part of gross salary. Sitting allowances were held to constitute agreed piece-rate wages under section 18(1) of the Employment Act, and article 260 of the Constitution confirmed the office was a public office.
Justiciability - political question doctrine
The case is justiciable; none of the six Baker v Carr tests of non-justiciability were established
The court applied the six Baker v Carr factors and found no alternative forum committed by the Constitution or statute, no lack of standards (the Constitution and statutes supplied the yardstick), no impossibility of resolution without policy determination, no disrespect to other branches, no prior political decision-making process, and no potential for multiple pronouncements.
Whether the appointment's timing (4 days before the general election) violated the spirit of article 134 and justified revocation
No; the appointment was permissible within the express provisions of article 134 and the 'spirit of the Constitution' submission collapsed
The court held there was no cross-appeal challenging the appointment, article 259(3)(a) permitted the outgoing President to act as occasion required, and computation of time is strictly reckoned under article 259(5)-(8). Invoking the constitutional 'spirit' to defeat appointments made outside the excluded period would produce absurd outcomes and cannot block enforcement of Bill of Rights entitlements.
Whether the pleasure doctrine entitled unchained revocation
The pleasure doctrine no longer applies under the Constitution of Kenya 2010; however, the petitioner waived the section 7(3) protection by signing the tenability-at-discretion clause
The court held that under article 236 removal requires due process and reasons, per article 47, article 10, Chapter 6 and article 232. But the petitioner's revocation was not under section 7(3) for failure in the national interest; it rested on the duration clause he signed. By signing, he expressly gave up his section 7(3) protection, so the waiver doctrine applied and the revocation could not be quashed.
Remedies
Principal prayers refused for want of established rights violations; declaratory orders issued on statutory review and the cleanliness of the petitioner's record
Having found waiver and no adverse findings against the petitioner, the court found no violation of rights. It nonetheless declared that the respondent should prioritise review and alignment of pre-2010 state corporation statutes with the Constitution and the Public Service Commission Act, 2017, and declared the petitioner's reputation and integrity clean, with each party bearing own costs.
Legal principles established
#- The pleasure doctrine no longer applies to removal from public or state office under the Constitution of Kenya 2010; removal must comply with due process
- A chairperson of a state corporation board who signs an appointment letter stating the appointment is tenable at the discretion of the Government waives the protection of section 7(3) of the State Corporations Act
- State corporation board members are public officers and employees within the meaning of the Employment Act and Labour Relations Act where remunerated out of public resources, conferring jurisdiction on the ELRC
- Revocation of appointment of state corporation chairpersons is not an appointment or dismissal under article 132 of the Constitution but pursuant to legislation under the State Corporations Act
Court orders
#- 1.Declaration that the respondent is to prioritise review of the State Corporations Act and other statutes establishing state corporations which were enacted prior to the Constitution of Kenya 2010, with a view of aligning them to the Constitution of Kenya 2010 and harmonising them with the Public Service Commission Act, 2017
- 2.Declaration that the petitioner's appointment was not revoked under section 7(3) of the State Corporations Act on account of failure to carry out his functions in the national interest or upon an adverse reason, as his reputation and integrity is clean in that regard
- 3.Each party to bear own costs of the petition
- Jurisdiction invoked
- Article 162(2) of the Constitution and sections 12(1) and (2) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rukaria v Attorney General; Debasso & another (Interested Parties) (Petition 2 of 2023) [2023] KEELRC 2824 (KLR)", Case Analysis (2023). Petition dated February 17, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2824/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.