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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 268 (KLR)

Maad CHRP v Council of the Institute of Human Resource Management & 3 others; Kanisa (Interested Party) (Petition E154 of 2023) [2024] KEELRC 268 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2024
4,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed a public board CEO appointment because the winning candidate was a board member who helped create the vacancy.

What this practically means

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Executive summary

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The petitioner, an unsuccessful applicant for the position of Chief Executive Officer of the Human Resource Management Professionals Examination Board (HRMPEB), petitioned challenging the appointment of the interested party, who had been a sitting board member and board secretary, on grounds of conflict of interest and violation of Articles 10, 73, 232 and 41 of the Constitution. He sought declarations of unconstitutionality, judicial review orders of mandamus, prohibition and certiorari quashing the appointment, and an order barring extension of board members' terms. All respondents and the interested party opposed, contending that a competitive and transparent process was followed, that conflict of interest was declared at a board meeting on 24.06.2023, and that no law barred a board member from applying. The 1st respondent further argued it was wrongly joined as a separate legal entity that took no part in the recruitment. The Court found the interested party guilty of conflict of interest: as a sitting board member he chaired the committee that recommended non-renewal of the outgoing CEO, participated in declaring and processing the vacancy, only declared interest at the shortlisting stage, and remained a board member until 10.07.2023 despite appointment on 04.07.2023. The respondents failed to exhibit minutes, score sheets and evaluation documentation, so merit, transparency and genuine competition were not demonstrated, applying the Chama Cha Mawakili decision. Violations of Articles 10, 73, 232(1)(g) and the petitioner's Article 41 right were established. The petition succeeded except for the prayer barring extension of board members' terms, refused as overtaken by effluxion of tenure and because the affected members were not heard. Certiorari quashed the appointment; mandamus compelled termination and a fresh competitive recruitment. The 2nd respondent was ordered to pay the petitioner's costs, with other parties bearing their own costs.

Key legal issues

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01

Conflict of interest by a board member contesting the CEO vacancy of the same board

Holding

The interested party was guilty of conflict of interest; he participated in declaring the vacancy, chairing the committee that recommended non-renewal, and processing the recruitment until the shortlisting stage, and remained a board member until 10.07.2023 after his appointment on 04.07.2023

Reasoning

Section 12 of the Public Officer Ethics Act requires a public officer to avoid conflicts between personal interests and official duties, to declare them and refrain from participating in deliberations. The interested party had insider information and participated in the process until 24.06.2023, when he belatedly declared interest at shortlisting. He remained a board member after appointment, meaning he was effectively part of the board that appointed him.

p. 6
02

Whether the recruitment was competitive, transparent and merit-based as required by Articles 10, 73 and 232

Holding

The process was opaque; the respondents failed to exhibit board minutes, scorecards and evaluation documentation establishing merit and competition

Reasoning

The Court relied on the Chama Cha Mawakili holding that an objective, predetermined score sheet and related documentation must be available to ascertain compliance in recruitment. In the absence of such documentation, it is difficult to find a process consistent with constitutional and statutory safeguards. The steps followed were found to be vacuous in substance.

p. 8
03

Violation of the petitioner's right to fair labour practices under Article 41

Holding

Established - as a candidate the petitioner was not given a fair chance because the process was impaired by the interested party's conflict of interest

Reasoning

The Court found the petitioner, as a candidate in the impugned recruitment, was not afforded a fair chance since the process was tainted by the interested party's undisclosed, and later belatedly disclosed, conflict of interest and the absence of demonstrated objective evaluation criteria.

p. 7

Legal principles established

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  • A board member who participates in declaring and processing a vacancy to the office of CEO cannot properly stand as a candidate in that recruitment; declaring conflict of interest only at the shortlisting stage does not cure the conflict
  • A public appointing body must exhibit objective documentation of the recruitment process, including score sheets and minutes, to demonstrate that merit, transparency and genuine competition took place

Court orders

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  1. 1.Declaration that the 2nd respondent's appointment of the interested party as CEO is illegal, unconstitutional, null and void for failure (or belated disclosure) to disclose conflict of interest under Articles 10, 73 and 232(1)(g) of the Constitution
  2. 2.Declaration that the appointment was made without consideration that the interested party was a board member who took part in critical processes leading to the vacancy, in violation of Articles 10 and 232
  3. 3.Judicial Review Order of Mandamus compelling the 2nd respondent to terminate the appointment of the interested party as CEO
  4. 4.Judicial Review Order of Prohibition against the 2nd respondent from appointing any member of its board into the position of CEO, especially those who participated in the recruitment process and failed to declare conflict of interest
  5. 5.Judicial Review Order of Certiorari quashing the interested party's letter of appointment dated 4th July 2023 and the appointment as CEO of HRMPEB
  6. 6.Judicial Review Order of Mandamus compelling the 2nd respondent to conduct a fresh competitive recruitment of the CEO adherent to the principles of governance, Values of Public Service, Mwongozo and Chapter 6 of the Constitution
  7. 7.2nd respondent to pay the petitioner's costs; other parties to bear their own costs
Jurisdiction invoked
Articles 10, 41, 73 and 232 of the Constitution of Kenya, 2010 (petition alleging violation of constitutional values, public service values and fair labour practices)

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, "Maad CHRP v Council of the Institute of Human Resource Management & 3 others; Kanisa (Interested Party) (Petition E154 of 2023) [2024] KEELRC 268 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/268/eng@2024-02-16

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