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ELRCAllowedELRC Petition No. 68 of 2022· [2024] KEELRC 894 (KLR)

Saire & another v Cabinet Secretary for Lands and Planning & another (Petition 68 of 2022) [2024] KEELRC 894 (KLR)

Employment and Labour Relations Court
18 April 2024
MOMaureen Onyango
2,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's courts can reverse government revocations made without reasons, even where a statute allows removal at any time.

What this practically means

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Executive summary

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The Petitioners, former members of the Kajiado West sub-county Land Control Board, challenged their removal by the 1st Respondent via Gazette Notice No. 12827 dated 18th November 2021, barely six months into their three-year appointments effected through Gazette Notices No. 6986 and No. 8451. They invoked Article 47 of the Constitution and sections 4 and 7 of the Fair Administrative Action Act, seeking declarations that the revocation was unconstitutional and an abuse of power, an order of certiorari to quash it, a restraining order, and costs. The 1st Respondent filed Grounds of Opposition contending the petition was defective and devoid of merit; the 2nd Respondent, the Attorney General, was sued in his capacity as principal legal advisor to the Government. The petition was disposed of by written submissions; the Respondents filed none. The court framed two issues: whether the revocation was lawful, and whether the 1st Respondent violated the Petitioners' legitimate expectation. On the first, although section 14 of the Land Control Act permits the Minister to terminate a member's appointment at any time, the court held that Article 47 requires administrative action to be lawful, reasonable and procedurally fair, with written reasons where rights are adversely affected. No reasons were given, so the revocation was unconstitutional. On the second, the court found the appointments induced a legitimate expectation of a three-year term which the revocation breached. Judgment was entered for the Petitioners with declarations, certiorari, a restraining order, and costs against the 1st Respondent.

Key legal issues

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01

Whether the revocation of the Petitioners' appointments was lawful

Holding

The revocation was unlawful and unconstitutional for failure to accord fair administrative action under Article 47

Reasoning

Although section 14 of the Land Control Act permits the Minister to terminate a member's appointment at any time, that statutory power is subject to Article 47, which requires administrative action to be expeditious, efficient, lawful, reasonable and procedurally fair, and requires written reasons where action adversely affects a person. No reasons or notice were given, so the revocation failed the test of fair administrative action.

p. 5
02

Whether the 1st Respondent violated the Petitioners' legitimate expectation

Holding

The 1st Respondent breached the Petitioners' legitimate expectation to serve for three years

Reasoning

By Gazette Notices No. 6986 and No. 8451 the 1st Respondent represented that the Petitioners were appointed for three years. The Petitioners acted on that representation by attending and participating in board meetings. Revoking the appointments barely six months later, without reasons or notice, thwarted that legitimate expectation, which fairness and the rule of law require be protected.

p. 6

Legal principles established

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  • An administrative action taken without reasons violates the right to fair administrative action under Article 47 of the Constitution
  • A public body that induces an expectation of tenure by appointing persons for a specified term breaches their legitimate expectation by revoking the appointment without reasons or hearing

Court orders

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  1. 1.A declaration that the revocation of the Petitioners' appointment vide Gazette Notice No. 12827 dated 18th November 2021 is inimical to Article 47 of the Constitution and unconstitutional as it amounts to administrative action that is inefficient, unlawful, unreasonable and procedurally unfair
  2. 2.A declaration that the Petitioners' appointment to the Kajiado West sub-county Land Control Board vide Gazette Notice No. 6986 and Gazette Notice No. 8451 is valid and remains in force for three years from the date of appointment
  3. 3.An order of Certiorari quashing the decision of the 1st Respondent vide Gazette Notice No. 12827 dated 18th November 2021 revoking the Petitioners' appointment
  4. 4.A restraining order restraining the Respondents from frustrating or unlawfully interfering with the Petitioners' appointment for a term of three years unless done in compliance with the law
  5. 5.The 1st Respondent to bear the costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1), 47(2), 47(3), Article 156, Article 10(2)(c)
  • Fair Administrative Action Actsections 4 and 7, section 4(3)(a) and (b)
  • Land Control Actsection 14, section 17
  • Land Control Board Actsection 14
  • Civil Procedure Rules, 2010conservatory orders

Cases cited (5)

  • Export Trading Company vs Kenya Revenue Authority
    Civil Appeal No. 52 of 2014
  • Judicial Service Commission v Hon. Mr. Justice Mbalu Mutava & Another
    [2014] eKLR
  • Wangondu & Others v Coffee Board of Kenya & Minister for Agriculture
    (2012) eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services & 5 others
    [2014] eKLR
  • National Director of Public Prosecutions vs Phillips & Others
    (2002) (4) SA 60
Jurisdiction invoked
Article 47 of the Constitution of Kenya and sections 4 and 7 of the Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saire & another v Cabinet Secretary for Lands and Planning & another (Petition 68 of 2022) [2024] KEELRC 894 (KLR)", Case Analysis (2024). ELRC Petition No. 68 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/894/eng@2024-04-18

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