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ELRCPartially AllowedNot stated in judgment (Petition dated 21st December 2023)· [2024] KEELRC 1296 (KLR)

Okoiti v Board of Directors, Tea Board of Kenya & 2 others; Mutai (Interested Party) (Employment and Labour Relations Petition E244 of 2023) [2024] KEELRC 1296 (KLR)

High Court of Kenya
17 May 2024
2,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court voided the Tea Board CEO's appointment because the Cabinet Secretary unlawfully interfered with the Board's merit-based recruitment process.

What this practically means

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Executive summary

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The Petitioner challenged the appointment of Willy Kipkoech Mutai as Chief Executive Officer of the Tea Board of Kenya, contending that the Cabinet Secretary for Agriculture and Livestock Development unlawfully directed the appointment contrary to Section 13(1) of the Tea Act, which vests competitive recruitment and appointment of the CEO exclusively in the Board. The Petitioner also alleged breaches of Articles 27, 41, 47(1), 73(2)(a) and 232(1)(g) of the Constitution and Sections 5 of the Employment Act and 10 of the Public Service (Values and Principles) Act, asserting favouritism, discrimination and the sidelining of the top-scoring candidate. The 1st Respondent maintained that it recruited competitively, sought only the CS's concurrence, and that the CS's letter did not amount to a directive. The court framed two issues: whether the appointment was ultra vires Section 13(1) of the Tea Act, and whether the Petitioner was entitled to the orders sought. The court found that Section 13(1) gives no room to the Ministry to participate in the appointment, and that the CS's recommendation of the second-ranked candidate (72.4 points) over the top candidate (78 points), without disclosed reasons, showed the process was neither competitive nor merit-based, amounting to favouritism and a breach of fair labour practices. Applying the Anarita Karimi standard as adopted in Garissa Northern Disabled Persons Organisation, the court held the appointment unlawful, unprocedural and void ab initio. Prayers I, II, III, IV and VI were granted; prayers VII and VIII were refused without recorded reasons. As public interest litigation, each party bore its own costs. Judgment delivered virtually in Nairobi on 17th May 2024.

Key legal issues

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01

Whether the appointment of the CEO of the Tea Board of Kenya was ultra vires Section 13(1) of the Tea Act

Holding

Yes - the appointment was ultra vires and unlawful because the Cabinet Secretary participated in the appointment contrary to Section 13(1), which vests recruitment and appointment exclusively in the Board

Reasoning

Section 13(1) vests competitive recruitment and appointment of the CEO exclusively in the Board. The Board interviewed candidates and forwarded the top three to the CS, who recommended the Interested Party, who scored 72.4 against the top candidate's 78. The CS's recommendation displaced the Board's mandate, and the departure from merit was unexplained, breaching the Tea Act, Article 41 and Section 10 of the Public Service (Values and Principles) Act.

p. 4
02

Whether the appointment was made on merit and through fair competition

Holding

No - the Interested Party was not the top-scoring candidate and no justification was disclosed, so the process was not competitive and the court infers favouritism

Reasoning

The interview score sheet showed the Interested Party second among the top three, while the top candidate, Dr. Bahati Kizindaro, scored 78 against his 72.4. The respondents did not demonstrate that choosing him was competitive, and the appointment letter gave no reasons. In the absence of an explanation, the court holds favouritism, contrary to Articles 73(2)(a) and 232(1)(g) and fair labour practices under Article 41.

p. 5
03

Whether the Petitioner is entitled to the orders sought

Holding

Partially - prayers I, II, III, IV and VI granted; prayers VII and VIII refused; each party to bear own costs

Reasoning

Having found the appointment unlawful, unprocedural and void ab initio, the court granted most of the reliefs sought, declining only prayers VII and VIII without recorded reasons. Costs were not awarded against any party because the litigation was characterised as public interest litigation.

p. 5

Legal principles established

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  • Where a statute vests power to recruit and appoint a CEO in a Board through competitive recruitment, the Cabinet Secretary has no role in the appointment; a recommendation by the CS amounting to direction is ultra vires.
  • Public officers must be appointed and promoted on the basis of fair competition and merit; appointing a lower-scoring candidate without a disclosed reason is favouritism and unlawful.

Court orders

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  1. 1.Reliefs in prayers I, II, III, IV and VI of the Petition dated 21st December 2023 granted; prayers VII and VIII refused
  2. 2.Each party to meet their own costs as this is public interest litigation

Authorities

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Legislation

  • Tea ActSection 13(1)
  • Employment ActSection 5
  • Public Service (Values and Principles) Act, Cap 185A / No 1A of 2015Section 10
  • Constitution of KenyaArticles 10, 27, 41, 47(1), 48, 73(2)(a), 73(2)(b), 159(2)(d), 232(1)(g)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Anarita Karimi vs The Republic
  • Garissa Northern Disabled Persons Organisation vs the Governor of Garissa & another
    HCC Petition No 4 of 2013
Jurisdiction invoked
Original constitutional jurisdiction (Article 165 Constitution); invoked via petition dated 21st December 2023

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Okoiti v Board of Directors, Tea Board of Kenya & 2 others; Mutai (Interested Party) (Employment and Labour Relations Petition E244 of 2023) [2024] KEELRC 1296 (KLR)", Case Analysis (2024). Not stated in judgment (Petition dated 21st December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1296/eng@2024-05-17

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