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ELRCDismissedPetition (Nairobi), amended petition dated 23.11.2023 (Const. Pet. E184 of 2022 referred to)· [2024] KEELRC 663 (KLR)

Association of Muslim Lawyers & another v Governor, County Government of Nairobi & 2 others (Petition E184 of 2022) [2024] KEELRC 663 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
15 March 2024
BOByram Ongaya
1,915 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioners, through an amended petition dated 23.11.2023, challenged the nomination, vetting and appointment of Nairobi City County Executive Committee Members and County Secretary nominees announced by the Governor on 26th October 2022. They sought declarations that the process violated Articles 10, 27, 56, 73(2) and 232 of the Constitution and Section 35 of the County Governments Act, an order quashing the appointments, mandamus compelling revocation, and a declaration that the respondents were unsuitable for public office, alleging omission of Muslim and Hindu faiths and of Somali, Arab, Indian, Nubian and Borana communities, and failure of the two-thirds gender rule (5 of 18 nominees female). The 1st Respondent defended the appointments under Article 179 and the pleasure doctrine, contending that 18 posts could not accommodate all 47 tribes and religions, that vetting involved public participation, and that no evidence supported the claimed GDP contribution. The 2nd Respondent, the Speaker, urged dismissal as the appointments followed the law and the petition lacked precision and was overtaken by events. The Court found the petitioners had not provided data or analysis of the County's diversity parameters, no comparator to establish breach of the constitutional and statutory thresholds, and that they had not presented grievances to the County Assembly during vetting, warranting non-exhaustion. It rejected the pleasure doctrine as inapplicable in Kenya's new Republic, holding the Governor's appointment power bound by reasonableness and fairness. The petition was dismissed with no orders on costs, the Court deeming it genuine public interest litigation.

Key legal issues

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Whether the appointments violated the community and cultural diversity requirements (Articles 10, 56, 232; Section 35 County Governments Act) and the two-thirds gender rule

Holding

The petition failed for want of evidence; no analysis of the parameters in Nairobi County was provided and without reliable data there was no comparator against which to test the thresholds

Reasoning

The petitioners merely listed the nominees and alleged omission of Muslim and Hindu faiths and certain ethnic communities without data on the composition of Nairobi County. The Court found the petitioners' own evidence showed the alleged minorities had been included in previous governments, undermining any claim of systematic exclusion, and held that appointments cannot be disturbed without due established facts and evidence.

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02

Whether the Governor's appointments were protected by the pleasure doctrine

Holding

The pleasure doctrine does not apply in Kenya's new Republic; the Governor's appointment power is chained by reasonableness and fairness under Articles 10, 232 and Chapter 6 of the Constitution

Reasoning

The 1st Respondent argued his appointment function rested on the pleasure doctrine conferring discretion to appoint anyone meeting Chapter Six requirements. The Court rejected this, holding the appointment power is bounded by constitutional values and statutory substantive and procedural requirements already elaborated in the Court's ruling of 30.11.2022 (Mwaure J).

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Whether the Court should adjudicate the grievances given non-exhaustion of the statutory vetting procedure

Holding

The Court would decline to delve into merit considerations because the petitioners did not present their grievances to the County Assembly during the vetting process

Reasoning

The statutory vetting procedure before the County Assembly, including submission of memoranda and public participation, was available to the petitioners to make their concerns known. The Court found they had not shown they used it, and declined to consider the merits of the appointments for want of exhaustion of that remedy.

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Legal principles established

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  • The pleasure doctrine does not apply to public appointments in Kenya's constitutional order; the Governor's power to appoint is constrained by reasonableness and fairness under Articles 10, 232 and Chapter 6 of the Constitution and applicable statutes
  • A party alleging breach of the diversity and gender composition requirements in public appointments must lead material evidence and data establishing the claimed omission

Court orders

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  1. 1.The petition is hereby dismissed with no orders on costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20(1), 23(3), 25(c), 27(1), 41, 47, 48, 50, 56, 73(2), 131(b), 153(1) and (4)(a), 178, 179, 232, 236; Chapter Six; Chapter Thirteen
  • County Governments ActNo. 17 of 2012, Section 35 (Section 35(1)(a))
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 23(3) of the Constitution of Kenya, 2010 (Articles 10, 27, 56, 73(2), 232, 236 and Section 35 of the County Governments Act invoked)

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, "Association of Muslim Lawyers & another v Governor, County Government of Nairobi & 2 others (Petition E184 of 2022) [2024] KEELRC 663 (KLR)", Case Analysis (2024). Petition (Nairobi), amended petition dated 23.11.2023 (Const. Pet. E184 of 2022 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/663/eng@2024-03-15

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