Wafula & 2 others v Public Service Commission & 4 others; Law Society of Kenya & 2 others (Interested Parties) (Petition E218, E217 & E226 of 2023 (Consolidated)) [2024] KEELRC 1283 (KLR)
The bottom line
#Kenya's Employment Court restored Dr. Peter Mburu's appointment as Chief Land Registrar, ruling the Public Service Commission could not reverse it based on unverified intelligence claims.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Commission's rescission of Mr. Mburu's appointment
The rescission was void as no valid or genuine reason was established and it was never conveyed to the Principal Secretary or Mr. Mburu
The alleged verbal adverse NIS communication of 28.09.2023 was unverified, with no persons disclosed; the confirming NIS letter was received only on 05.10.2023, after the 08.09.2023 timeline had lapsed. Treating belated information discriminately against one candidate breached parity of treatment under Article 27 and section 5 of the Employment Act. The rescission and recall were never communicated to the affected officer or the Ministry.
Exhaustion of the Commission's appointing power and appointment of Mr. Nyandoro
The appointment of Mr. Nyandoro from the reserve list had no basis because no vacancy was reported within six months; the purported appointment was void
Having appointed Mr. Mburu, the Commission's power over the advertised vacancy was exhausted. Reserve-list candidates could be appointed only if a vacancy occurred and was declared within six months, which never happened. Article 259(3) permits exercise of a power only as occasion requires; the occasion never accrued, and no constitutional or statutory provision empowered unilateral recall.
Violation of fair administrative action and fair labour practices
The rescission without written reasons and without communication violated Articles 41 and 47 and Article 27
Article 47 guarantees expeditious, efficient, lawful, reasonable and procedurally fair administrative action and written reasons where rights are affected. Mr. Mburu received neither reasons nor communication of the rescission and recall. The standards in sections 43 and 45 of the Employment Act were not met, and the delay by the Principal Secretary in implementing the appointment also contravened Articles 41 and 47.
Protection of acts done by Mr. Nyandoro while holding office
Under the ruling of 07.12.2023 and the principle of necessity, acts done by Mr. Nyandoro as Chief Land Registrar are deemed validly done except where otherwise established in a specific case
The Chief Land Registrar performs crucial statutory functions and many transactions by third parties were made in good faith during the pendency of the dispute. Public interest and certainty in land transactions required protecting those dealings notwithstanding the invalidity of the appointment itself.
Legal principles established
#- A constitutional commission cannot unilaterally recall or rescind its own appointment decision without notice to affected persons and upon untested reasons
- An act that is void is a nullity and incurably bad, requiring no court order to set it aside
- Persons adversely mentioned by intelligence information are entitled to lawful and procedurally fair administrative action, including written reasons under Article 47
- Once a commission has decided to appoint a candidate, its appointing power over that vacancy is exhausted; reserve-list candidates may be appointed only upon a declared vacancy within the stated period
Court orders
#- 1.Declaration that the PSC decisions rescinding Mr. Mburu's appointment, recalling the appointment letter, appointing Mr. Nyandoro and conveying that appointment, and all processes flowing therefrom, were void acts and a nullity and are set aside, including the letters dated 28.09.2023 (PSC/212/2/1/1; PSC/21/2/(12)) and 17.11.2023 (Ref. No 2006004230/(218))
- 2.Upholding the Commission's decision of 28.09.2023 appointing Peter Mburu Ng'ang'a as Chief Land Registrar and the letter conveying it
- 3.The Principal Secretary to forthwith convey to Peter Mburu Ng'ang'a the Commission's decision of 28.09.2023 appointing him to the advertised post of Chief Land Registrar
- 4.Declaration that upon the ruling of 07.12.2023 and the principle of necessity, anything done by Mr. Nyandoro as Chief Land Registrar is deemed validly and lawfully done except where otherwise established in any specific case
- 5.Permanent injunction restraining the Principal Secretary and Cabinet Secretary from subjecting Mr. Mburu to unfair labour practices
- 6.Declaration that the Principal Secretary's deliberate, unjustified delay in implementing the Commission's decision was unlawful and contravened Articles 41 and 47
- 7.Declaration that the purported appointment of Mr. Nyandoro undermined the functions and powers of the Commission under Articles 233 and 234
- 8.Order of Mandamus directing the Principal Secretary and Cabinet Secretary to fully implement the Commission's decision of 28.09.2023 appointing Mr. Mburu
- 9.Each party to bear own costs of the consolidated petitions
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (public interest enforcement of constitutional rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula & 2 others v Public Service Commission & 4 others; Law Society of Kenya & 2 others (Interested Parties) (Petition E218, E217 & E226 of 2023 (Consolidated)) [2024] KEELRC 1283 (KLR)", Case Analysis (2024). Consolidated Petitions E217 of 2023, E218 of 2023 and E225 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1283/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.