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ELRCPartially AllowedJudicial Review Notice of Motion dated 31st July 2023 (Chamber Summons dated 17th July 2023)· [2024] KEELRC 106 (KLR)

Republic v Cabinet Secretary, Ministry of Education & another; Wamoto (Exparte Applicant) (Judicial Review 3 of 2023) [2024] KEELRC 106 (KLR)

High Court of Kenya
31 January 2024
JKJemimah Keli
6,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court reinstated a TVET college board chair, ruling the Education Cabinet Secretary cannot remove an appointee without notice and a fair hearing.

What this practically means

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Executive summary

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The Ex parte Applicant, Peter Malobo Wamoto, was appointed Chairperson of the Webuye West Technical and Vocational College Board by the Cabinet Secretary for Education on 18th January 2023. On 3rd July 2023 he received a revocation letter dated 5th May 2023, citing his concurrent chairmanship of the Trans Nzoia County Public Service Board and alleged breaches of the Mwongozo Code and two circulars. The same letter appointed the 2nd Respondent in his place. The 1st Respondent did not enter appearance; the 2nd Respondent opposed, contending his own appointment was meritorious and lawful. Framing two issues - breach of Article 47 and entitlement to reliefs - the court applied the Supreme Court's guidance in John Florence Maritime Services, confining itself to process rather than merits. It found the college is not a State Corporation, so Mwongozo did not strictly apply, but held that revocation had to comply with Regulation 9 of Schedule 2 of the TVET Act. The Applicant received no notice or opportunity to respond, and the letter's date conflicted with evidence he was still in office on 29th June 2023. The revocation was therefore irregular, unlawful and null and void, and the 2nd Respondent's appointment, made when no vacancy existed, was a nullity ab initio. The court distinguished Humprey Nyongera Makokha on proportionality and followed Okiya Omtatah Okoiti. Certiorari quashed both the revocation and the appointment; the Applicant was ordered to serve his full three-year term unless lawfully removed. Costs were awarded to the Ex parte Applicant payable by the 1st Respondent.

Key legal issues

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01

Whether the revocation of the Ex parte Applicant's appointment violated Article 47 (fair administrative action)

Holding

Yes. The revocation was irregular, unlawful, unprocedural and null and void because the Applicant was given no notice or hearing and the revocation did not comply with Regulation 9 of Schedule 2 of the TVET Act

Reasoning

The Applicant was appointed under section 28(3) and Schedule 2 of the TVET Act. Regulation 9 of Schedule 2 sets out exhaustive grounds and procedure for revocation. He was neither given notice of the intended revocation nor invited to respond. The revocation letter was dated 5th May 2023 yet evidence showed he was still acting in office on 29th June 2023, suggesting the letter was backdated. The court, exercising supervisory review, found a public law wrong in the process rather than adjudicating the merits.

p. 10
02

Whether the 2nd Respondent's appointment stands

Holding

The appointment was a nullity ab initio because no vacancy existed; it was quashed and declared null and void, distinguishing Humprey Nyongera Makokha on proportionality and following Okiya Omtatah Okoiti

Reasoning

The 2nd Respondent was innocent and the court was not concerned with his merits, but with the public wrong by the appointing authority. The court declined to apply the proportionality principle in Humprey Nyongera Makokha because that case concerned legality of general recruitment to state corporations, whereas here there was a direct public wrong against a specific individual. Following Okiya Omtatah Okoiti, a wrongful revocation and replacement is null and void and the original appointee serves his full term unless lawfully removed.

p. 11
03

Whether Mwongozo Code applies to the college / whether the college is a State Corporation

Holding

The court agreed the college, offering only artisan certificates and diplomas under section 26 of the TVET Act, is not a body corporate and therefore not a State Corporation to which the Mwongozo Code applies

Reasoning

The Mwongozo Code was issued under section 30 of the State Corporations Act and applies to State Corporations. Section 26(2) of the TVET Act establishes only certain categories of institutions as bodies corporate; technical and vocational colleges are not among them. The court accepted the Applicant's argument on this point but refrained from making findings on the merits of the revocation decision, confining itself to process.

p. 10

Legal principles established

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  • Judicial review is concerned with the legality and procedural validity of the decision-making process, not the merits of the decision, and the court may not substitute its own decision on merit but must remit to the body with power to decide
  • Removal of a board chairperson must comply with the statutory revocation grounds and procedure; revocation without notice or an opportunity to respond is irregular
  • An appointment made to a position that is not vacant is a nullity ab initio
  • The service under pleasure doctrine has been superseded by the right to fair administrative action under Article 47 of the Constitution

Court orders

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  1. 1.An Order of Certiorari quashing the decision of the 1st Respondent dated 5th May 2023 revoking the Ex parte Applicant's appointment as Chairperson of the Board of Governors for Webuye West Technical and Vocational College
  2. 2.An Order of Certiorari quashing the decision of the 1st Respondent dated 5th May 2023 appointing the 2nd Respondent as Chairperson of the Board
  3. 3.A declaration that the appointment of the 2nd Respondent to replace the Ex parte Applicant vide letter dated 5th May 2023 is unlawful, unprocedural, null and void and a nullity ab-initio
  4. 4.An order that the Ex parte Applicant serve his full three (3) year term as Chairperson of the Board of Governors for Webuye West Technical and Vocational College unless otherwise lawfully removed from office
  5. 5.Costs of the Petition awarded to the Ex parte Applicant payable by the 1st Respondent
  6. 6.Interim court order: the Respondents be availed typed and certified copies of the proceedings upon request in the normal court registry process

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1) and (2); Article 41(1)
  • Technical and Vocational Education and Training (TVET) Act, No. 29 of 2013Section 28(3); Section 26; Second Schedule Part (1) and (2); Regulation 9 of Schedule 2; Clause 1 First Schedule; Clause 11(3) Second Schedule
  • State Corporations Act, CAP 446 (No. 11 of 1986)Section 30; definition of state corporation
  • Mwongozo Code of Conduct for State Corporations
  • Fair Administrative Actions Act
  • Employment ActSection 5
  • Chief of Staff and Head of Public Service Circular Ref. No. OP/SCAC.9/73 VOL.1(84) dated 30th July 2015
  • Cabinet Secretary Ministry of Education Circular Ref. No. MOEST/CONF/2/2 VOL. IV(50) dated 9th January 2019

Cases cited (6)

  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure & 3 others
    SC Petition 17 of 2015 (2021) eKLR
  • Republic v Chesang (Ms) Resident Magistrate & 2 others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 others
    [2017] eKLR
  • R v Traffic Commissioner for North Western Traffic Area ex parte Brake
    [1996] COD 248
  • Reid v Secretary of State for Scotland
    [1999] 2 AC 512
  • Humprey Nyongera Makokha and another v CAK and another
    JR No. 4 of 2014
  • Okiya Omtatah Okoiti v President of Kenya & 6 others
    [2017] eKLR
Jurisdiction invoked
Judicial review / supervisory jurisdiction of the High Court under the Constitution of Kenya, 2010 (Article 47; Fair Administrative Action Act) and order of leave granted

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 Cabinet Secretary, Ministry of Education & another; Wamoto (Exparte Applicant) (Judicial Review 3 of 2023) [2024] KEELRC 106 (KLR)", Case Analysis (2024). Judicial Review Notice of Motion dated 31st July 2023 (Chamber Summons dated 17th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/106/eng@2024-01-31

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