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ELRCDismissedNot stated in judgment· [2025] KEELRC 208 (KLR)

Consumers Federation of Kenya (COFEK) (Suing Through Ephraim Kanake, Stephen Mutoro and Henry Ochieng) v Cabinet Secretary Ministry of Agriculture & Livestock Development & 3 others; Ethics and Anti-Corruption Commission & 9 others (Interested Parties) (Petition E126 of 2024) [2025] KEELRC 208 (KLR)

High Court of Kenya
30 January 2025
7,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's High Court upheld the appointment of Agriculture and Food Authority officials, ruling the recruitment was fair and no law required publishing candidate lists.

What this practically means

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Executive summary

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This first-instance constitutional petition, decided by Hellen Wasilwa J at Nairobi on 30th January 2025, challenged the appointment of the Chairperson and Directors of the Agriculture and Food Authority under Gazette Notices No. 3665 and 3667 of March 2023. The Petitioner, Consumers Federation of Kenya (COFEK), contended that the appointments breached Article 10 and Article 232(1)(g) of the Constitution and Sections 5(4)(b) and 5(5) of the Agriculture and Food Authority Act, alleging a 13-day nomination window, non-publication of nominating organizations and shortlisted candidates, absence of public participation, and improper board composition lacking consumer representation under Section 94 of the Consumer Protection Act. The Petitioner sought nullification of the appointments and a fresh recruitment. The Respondents and Interested Parties demonstrated an advert of 10th January 2023, 85 nominations, shortlisting, and interviews, and argued inordinate delay, failure to meet the Anarita Karimi Njeru pleading threshold, and that Section 94 does not override Section 5 of the AFA Act. The court framed four issues and resolved all against the Petitioner: the recruitment was procedurally done; publication of applicant and shortlists is not statutorily required; and the later-enacted AFA Act prevails over the Consumer Protection Act under the rule that a later statute is deemed to amend an earlier one. The EACC's objection for lack of prior complaint was also noted. The Petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the recruitment of the AFA Chairperson and Directors was procedurally done

Holding

The process was procedurally done; there was a public advertisement, applications, shortlisting and interviews, and the 13-day nomination window did not breach Article 10 or 232

Reasoning

The court found evidence of an advert in the public domain calling for applications, receipt of 85 nominations and 37 shortlisted candidates, and interviews at the Kenya School of Government. Section 5 of the AFA Act only requires competitive recruitment; publication of applicants' lists is not statutorily required. The petitioner neither complained within the nomination period nor demonstrated prejudice from non-publication of lists.

p. 15
02

Whether failure to publish shortlisted candidates and invite public comments violated the Constitution

Holding

No violation; the requirement to publish names of applicants and shortlists is not provided in the AFA Act

Reasoning

The court held that demanding all public bodies publish lists of applicants and nominees would be cumbersome and expensive; it suffices to advertise in the public domain and allow any aggrieved applicant to seek interview scores. The petitioner showed no interest as an applicant and no prejudice from non-publication.

p. 15
03

Whether the AFA Board's composition violated Section 94 of the Consumer Protection Act

Holding

No violation; the later-enacted AFA Act prevails and governs board composition exclusively

Reasoning

Applying the rule of statutory construction that a later Act repeals or amends an earlier one (citing Aburili J in Simon Kariithi and Mativo J in R v Kenya School of Law), the court held the AFA Act (2013) overrides the Consumer Protection Act (2012); Parliament, had it intended mandatory consumer representation on the AFA Board, would have expressly said so in Section 5.

p. 17

Legal principles established

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  • Where two statutes conflict, the later statute is deemed to have amended or overridden the earlier one; the AFA Act (2013) prevails over the Consumer Protection Act (2012)
  • Section 94 of the Consumer Protection Act requires appointing authorities to have due regard to accredited consumer organizations but does not mandate direct appointment of a consumer representative; a party must show an accredited consumer organization was denied participation
  • The burden of proof lies on the party alleging unconstitutionality; mere appointment does not prove illegality

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party shall meet its own costs
Jurisdiction invoked
Original constitutional jurisdiction (Articles 10, 22, 232 of the Constitution of Kenya, 2010) - invoked via petition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Consumers Federation of Kenya (COFEK) (Suing Through Ephraim Kanake, Stephen Mutoro and Henry Ochieng) v Cabinet Secretary Ministry of Agriculture & Livestock Development & 3 others; Ethics and Anti-Corruption Commission & 9 others (Interested Parties) (Petition E126 of 2024) [2025] KEELRC 208 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/208/eng@2025-01-30

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