Abajillo v Principal Secretary, Ministry of Interior & Coordination of National Government & 6 others (Employment and Labour Relations Petition E001 of 2024) [2024] KEELRC 2761 (KLR)
The bottom line
#Kenya's Employment Court voided a Chief's appointment because the recruit hid a family conflict of interest and lacked the required qualifications.
What this practically means
#Executive summary
#Key legal issues
#Competence/precision of the constitutional petition (Anarita Karimi Njeru threshold)
The petition met the threshold; the petitioner pleaded the provisions and manner of violation with reasonable precision and respondents mounted a defence without difficulty
The court noted the issue was raised only in closing submissions. Paragraphs 25-27 of the petition identified the constitutional provisions said to be infringed (Articles 27, 28, 47) and the manner of infringement (discrimination, dignity, procedural unfairness). The respondents were able to mount a defence without raising competence, so the objection failed and the court proceeded to the merits.
Conflict of interest and non-disclosure in public recruitment
The 5th respondent's non-disclosure of her blood relationship with the Assistant Chief she would supervise, and the 4th respondent's concealment of a letter disclosing that relationship, violated transparency and accountability under Article 10 and section 12 of the Public Officer Ethics Act
Section 12 of the Public Officer Ethics Act obliges public officers to avoid and declare conflicts of interest. The interviewing panel was not told of the kinship; the 4th respondent received a letter dated 24th April 2023 disclosing it but did not reveal it during the interviews on 2nd October 2023, and did not dispute receipt of the letter. This constituted material non-disclosure tainting the process.
Qualification and merit under Article 232 and the Scheme of Service
The 5th respondent did not meet the minimum qualifications (D grade instead of C plain, no diploma, non-residence), so her appointment violated Article 232 values of fair competition and merit
The Revised Scheme of Service for the National Government Administrative Officer (October 2015) required a mean grade C (plain) in KCSE and a diploma; there was admission the 5th respondent held a D grade and no diploma, and she was not a resident of the Township Location. Appointing an unqualified candidate contradicted the merit and fair-competition values in Article 232(1)(g)-(h).
Discrimination against the petitioner and other applicants
Excluding the petitioner as overqualified and adding alien marriage/age requirements to the advertisement amounted to indirect discrimination and rendered the recruitment flawed ab initio
The scheme of service set minimum qualifications with no maximum, so disqualifying the petitioner for holding an LLB was discrimination. Section 5(3) of the Employment Act prohibits discrimination in recruitment. The advertisement introduced marriage and age (30-45) requirements alien to the scheme of service, locking out qualified applicants; the process was thus discriminatory from the outset.
Irrationality of the appointment decision and violation of dignity
The appointment was irrational (taken on irrelevant factors after procedural impropriety) and the resulting violations mocked the petitioner's dignity under Articles 27, 28 and 47
The final decision took into account irrelevant factors (gender, priority letters, community skills) while ignoring the relevant criteria in the schemes of service, the Constitution and regulations. Because the petitioner was a victim of a process violating the Constitution, statutes and regulations, his dignity was 'put to mockery'. Violations were proved on a balance of probability.
Legal principles established
#- A public appointment made in breach of the national values, public service values and minimum statutory qualifications is a constitutional nullity
- Non-disclosure to an interviewing panel of a blood relationship with a subordinate in the same station violates transparency and accountability principles and constitutes a conflict of interest
- Excluding a candidate for being overqualified, where the scheme of service prescribes only minimum qualifications, is discrimination
Court orders
#- 1.A declaration that the recruitment of the 5th Respondent as Chief Township location is unconstitutional, illegal, unreasonable, irrational, procedurally unfair and therefore a nullity
- 2.An order restraining and/or prohibiting the 5th Respondent from assuming office, exercising power and functions of Chief Grade II for Township location, Moyale sub-county or drawing/earning any salaries or allowances thereof
- 3.Costs provided to the petitioner
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Bill of Rights enforcement jurisdiction, Articles 10, 22, 23, 27, 28, 47, 232, 236)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Abajillo v Principal Secretary, Ministry of Interior & Coordination of National Government & 6 others (Employment and Labour Relations Petition E001 of 2024) [2024] KEELRC 2761 (KLR)", Case Analysis (2024). Petition dated 7th March 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2761/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.