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High CourtDismissedPetition (Naivasha) dated 9th April 2019

Eskimos Kobia & 2 Others v County Government of Nakuru & 4 Others

High Court of Kenya
9 April 2020
6,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Minor procedural errors in county recruitment processes are generally not enough to overturn the entire hiring process.

What this practically means

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Executive summary

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The petitioners challenged the recruitment of the Naivasha Municipal Board, alleging a flawed, non-transparent process and objecting particularly to the nomination of Ruth Kabura to represent the informal sector. They sought nullification of the recruitment, a fresh process, and adherence to public participation principles. The 2nd respondent raised a preliminary objection on non-joinder and argued lack of jurisdiction on separation-of-powers grounds. The court (Mwongo J) first held it had jurisdiction under Article 165(3)(d), following Mumo Matemu, since courts retain the last word on the constitutionality of governmental actions. On the merits, the court found the recruitment commenced under the Urban Areas and Cities Act, 2011, which was in force until the Amendment Act commenced on 28th March 2019. The respondents demonstrated advertisements, interviews (including of the 1st petitioner, who scored but was unsuccessful), association nominations, county assembly vetting and public participation. The court found substantial compliance with the extant law and declined to fault a slight irregularity regarding signed nomination minutes under the new section 14(2) UACAA, holding it would be impracticable and unfair to restart the process. The court also noted the petition invoked constitutional articles but pleaded no constitutional violations, so was not substantively a constitutional petition. All prayers were declined, and the petitioners were ordered to bear 20% of the respondents' costs. Judgment was delivered by video-conference on 9th April 2020 due to the Covid-19 pandemic.

Key legal issues

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01

Jurisdiction over county recruitment processes despite separation of powers

Holding

The High Court has jurisdiction to entertain the petition under Article 165(3)(d), including inquiries into the devolved legislature and county executive

Reasoning

The court relied on Mumo Matemu, which held that while courts must defer to the independence of the legislature and give the Executive latitude, courts retain an interpretive role including the last word on constitutionality of governmental actions. Article 165(3)(d)(i)-(ii) vests jurisdiction over constitutional interpretation and inconsistency of governmental actions with the Constitution.

p. 4
02

Whether the recruitment exercise followed due process under the UACA and UACAA

Holding

Substantial compliance with the then-extant UACA was shown; the slight irregularity regarding section 14(2)(a)-(c) UACAA minutes did not amount to substantive procedural impropriety

Reasoning

The recruitment commenced under the UACA 2011 regime, which was in force until 27th March 2019. The Amendment Act commenced 28th March 2019, mid-process. Requiring a restart would be impracticable and unfair where there had been full compliance with the extant law. The failure to avail signed minutes under the new section 14(2) was a slight irregularity not warranting nullification.

p. 8
03

Whether the petition met the Anarita Karimi Njeru threshold

Holding

The petition failed to identify any constitutional provisions violated; it was not substantively a constitutional petition

Reasoning

Although the petition's title invoked Articles 21, 22, 23, 35, 232 and 235, no paragraph identified constitutional provisions allegedly breached; the violations alleged concerned the County Governments Act, the Public Appointments (County Assembly Approval) Act and a Bill.

p. 2
04

Costs

Holding

Petitioners to bear 20% of respondents' costs; the 1st petitioner participated in the process and the petition raised no constitutional issues

Reasoning

The court exercised discretion under section 27(1) of the Civil Procedure Act, noting the petitioners lost, the 1st petitioner fully participated in the recruitment without complaint, and the petition raised no constitutional issues. The respondents did not argue absence of public interest, which could have attracted different treatment.

p. 9

Legal principles established

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  • The High Court has jurisdiction under Article 165(3)(d) to determine the constitutionality or legality of county appointments notwithstanding separation of powers
  • A claimant challenging an appointment process must show substantive defects, fundamental omissions or extraneous considerations rendering the process unconstitutional
  • A petition invoking constitutional articles but alleging no constitutional violations in its body is not substantively a constitutional petition

Court orders

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  1. 1.All prayers sought by the petitioners declined
  2. 2.Petitioners to bear 20% of the respondents' party and party costs
Jurisdiction invoked
Article 165(3)(d) of the Constitution - original and unlimited jurisdiction to hear questions of constitutional interpretation

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, "Eskimos Kobia & 2 Others v County Government of Nakuru & 4 Others", Case Analysis (2020). Petition (Naivasha) dated 9th April 2019. Source: 

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