Shatsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1022 (KLR)
The bottom line
#The High Court in Kakamega dismissed a challenge to an Assistant Chief's appointment, confirming that competitive, merit-based recruitment does not require public participation.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the constitutional (Anarita Karimi Njeru) threshold
The petition was properly anchored in Articles 47, 50(1), 73 and 259 and pleaded the violations with reasonable precision and factual basis.
The court applied the Anarita Karimi Njeru standard. The petition and supporting affidavits pleaded the specific constitutional provisions allegedly infringed - Chapter Six and Article 47 - and set out the factual basis: non-residence of the 1st Respondent and alleged influence by his mother on the 3rd Respondent. The court therefore held the threshold met.
Whether the recruitment process was procedural
The recruitment was procedural: the position was publicly advertised, eleven applied, seven were shortlisted, interviews were conducted by a panel, and no proof of undue influence by the 1st Respondent's mother was adduced.
The Petitioners produced no evidence that the interview process was not carried out or that the 1st Respondent's mother influenced the appointment; documentary evidence showed she had transferred to the Ministry of Transport, Public Works, Housing and Urban Development before the recruitment. The allegation of irregular alterations on the marking sheets was vague, as no specific alteration was identified.
Whether the 1st Respondent was qualified for the position of Assistant Chief
The 1st Respondent met all the requirements: KCSE grade B- (above C-), diploma, over 30 years of age, resident of Shirere Sub-Location, good conduct certificate availed at interview, and computer certificate.
The court examined each requirement. On age, the ID showed birth on 16th August 1992. On residence, applying Black's Law Dictionary, residence does not require birth in the area; the 1st Respondent had built a home on Plot No. 6159/Isukha/Shirere. The good conduct certificate, though not attached at application, was availed at interview, and the court took judicial notice of processing delays. No evidence of forgery of the birth certificate was offered.
Whether the uncommissioned supporting affidavit of the 2nd Petitioner should stand
The purported affidavit lacked commissioning under the Oaths and Statutory Declarations Act and was struck out, without affecting the petition.
Section 5 of the Oaths and Statutory Declarations Act requires the Commissioner for Oaths to state truly in the jurat the place and date the affidavit is made. The document bore only a signature without the Commissioner's name, and was therefore not an affidavit. Its striking out did not affect the petition as it merely supported the 1st Petitioner's averments.
Legal principles established
#- A petitioner seeking constitutional redress must set out, with a reasonable degree of precision, that of which they complain, the provisions said to be infringed and the manner of infringement, with the factual basis.
- Public participation is not necessary for an open and competitively recruited public position where candidates are appointed on merit against set requirements.
- A 'resident' of a sub-location is one who lives in or has a home in the place; residence need not be by birth.
Court orders
#- 1.The Petition dated 14th November 2023 is dismissed for lack of merit.
- 2.No order as to costs, the petition having been filed in the public interest.
- Jurisdiction invoked
- Articles 47, 50(1), 73 and 259 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shatsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1022 (KLR)", Case Analysis (2024). Constitutional Petition dated 15th December 2023 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1022/eng@2024-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.