Hussein v Governor, County Government of Mandera & 2 others; Hassan (Interested Party) (Petition 215 of 2023) [2025] KEELRC 479 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to Mandera's County Secretary appointment because the petitioner skipped the official objection process and waited too long to sue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner delivered/served the memorandum objecting to the interested party's nomination in the prescribed form and thereby exhausted the statutory objection procedure
- 2.Whether the petition was an afterthought filed after unexplained inordinate delay
- 3.Whether the alleged constitutional violations in the nomination, approval and appointment of the interested party were established
Key legal issues
#Exhaustion of prescribed statutory objection procedure
The petitioner failed to prove delivery of the memorandum objecting to the nomination, and it was not in the prescribed form (sworn affidavit), so the objection was never validly made
The petitioner admitted he had no delivery receipt for the email and his memorandum was unsworn. The Assembly's public notice required objections by sworn statement accompanied by documentary evidence. On a balance of probability the objection was never delivered and was not in the prescribed form, so the statutory procedure was not exhausted.
Inordinate delay
The petition, filed 11 months after the petitioner became aware of the appointment, was an afterthought and the delay was inexcusable, barring relief that would unsettle the appointment
The petitioner knew of the appointment on 07.11.2022 but filed on 28.10.2023 without explanation. The delay was not excusable and operated as a bar to relief that would set aside an appointment already in effect; the court will not aid the indolent.
Alleged constitutional violations in the appointment
The alleged violations of Articles 27, 73 and 232 were not established and the reliefs sought were unjustified
Having found want of exhaustion of the objection procedure and inordinate delay, the court found the alleged violations unestablished and declined to interrogate the merits of the alleged lack of requisite experience, dismissing the petition with costs.
Legal principles established
#- A petitioner who fails to exhaust the prescribed statutory procedure for objecting to a nomination bars the court from delving into the merits of the challenge
- Unexplained inordinate delay in filing a petition challenging an appointment operates as a bar to setting aside that appointment
Court orders
#- 1.The petition is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 3, 22, 73, 232 and 258 of the Constitution; County Governments Act; Public Appointments (County Assemblies Approvals) Act, 2017
Relief refused
#Declaration that respondents failed to have regard to merit and suitability in appointing the interested party
Constitutional violations not established; petition filed after failure to exhaust prescribed statutory objection procedure
Declaration that the interested party was unqualified and his appointment null and void ab initio
Court barred from reaching merits due to want of exhaustion and inordinate delay
Order of certiorari quashing the appointment of the interested party as County Secretary
Petition dismissed as an afterthought filed after unexplained inordinate delay
Order of mandamus compelling the interested party to refund salaries, benefits and allowances
Reliefs found unjustified with the dismissal of the petition
Costs
The petition is dismissed with costs (costs to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the petition is hereby dismissed with costs.
the want of exhaustion of prescribed objection procedure and for no shown reason to comply with that statutory procedure bars the Court from delving into the merits of the alleged lack of requisite experience.
The Court considers that the delay was not excusable and it operates as a bar from granting the relief that would amount to setting aside the interested party's appointment which had already taken efiect long before the filing of the petition.
The Court will not aid the indolent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein v Governor, County Government of Mandera & 2 others; Hassan (Interested Party) (Petition 215 of 2023) [2025] KEELRC 479 (KLR)", Case Analysis (2025). Petition dated 28.10.2023 (ELC/ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/479/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.