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IndustrialPartially AllowedHigh Court Petition No. 425 of 2012 (consolidated with Judicial Review Application No. 339 of 2012)· [2014] KEIC 149 (KLR)

Juma v Kenya Broadcasting Corporation & 3 others (Judicial Review 24 of 2013) (Judicial Review) [2014] KEIC 149 (KLR)

Industrial Court of Kenya (transferred matters, delivered at Nairobi)
5 December 2014
MNMathews N. Nduma
4,524 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that KBC's age limit of 45 for Managing Director was discriminatory and void under Article 27(4).

What this practically means

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Executive summary

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This first-instance decision arose from a constitutional petition (High Court Petition No. 425 of 2012) consolidated with a judicial review application (No. 339 of 2012) challenging recruitment practices at the Kenya Broadcasting Corporation (KBC). Three agreed issues were determined. First, on the 45-year maximum age requirement for the Managing Director position, the Court found that no statute or regulation prescribed such a limit, and applying Wednesbury reasonableness and proportionality to constitutional adjudication, held the cut-off age grossly unreasonable, discriminatory on grounds of age contrary to Article 27(4), and in breach of the minimum core content of the right; the recruitment of the current Managing Director was declared null and void to that extent. Second, the Court found no merit in the claim that the failure to appoint a Deputy Managing Director breached Section 5(2) of the KBC Act, holding it a matter within the Board's discretion with no evidence of unreasonableness. Third, on the JR application seeking certiorari to quash the March 2012 recruitment of the Editor in Chief and Deputy Editor in Chief without internal advertisement, the Court held external advertisement was proper and consistent with Government policy and the values of fair competition and merit under Article 232(1)(g); the Applicant failed to discharge the burden of proving abuse of authority. The petition succeeded only on the age discrimination issue; the remaining relief was dismissed, and the 1st Respondent was ordered to meet the costs of the suit. Judgment was delivered at Nairobi on 5th December 2014 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Whether the age limit of 45 years for the Managing Director position was discriminatory under Article 27(4)

Holding

Yes - the decision was grossly unreasonable, breached proportionality and the minimum core content of the right to non-discrimination, and the recruitment of the current Managing Director to that extent is null and void.

Reasoning

The Court found no statute, rule or regulation prescribed the age limit, so the Board's decision could not be grounded in law. Applying Wednesbury reasonableness to constitutional adjudication, it held that a board properly directing itself could not have fixed such a cut-off age. It also found the decision failed the proportionality principle and negated the minimum core content of Article 27(4), unreasonably excluding many worthy applicants.

p. 11
02

Whether failure to appoint a Deputy Managing Director violated Section 5(2) of the KBC Act

Holding

No - the failure did not violate the Constitution or Section 5(2); it was a decision within the Board's discretion.

Reasoning

The Court found no evidence that the failure to appoint at that particular time was unreasonable or infringed the Petitioner's or any other person's rights. The matter fell within the Board's discretion and the Petitioner adduced nothing to displace that discretion.

p. 12
03

Whether recruiting the Editor in Chief and Deputy Editor in Chief externally without internal advertisement was unlawful

Holding

No - external advertisement of the vacant positions was proper and in keeping with Government policy on recruitment.

Reasoning

Considering the applicable statute, the KBC Code of Regulations and Government circulars, the Court concluded external advertisement was proper. Article 232(1)(g) requires fair competition and merit as the basis of appointments, which the external advertisement served. The Applicant bore the burden of proving abuse of authority on a balance of probability and failed to discharge it, so the certiorari application was dismissed.

p. 12

Legal principles established

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  • A decision by a public body may be declared unconstitutional where it is irrational or disproportionate, and judicial review principles of reasonableness apply in constitutional adjudication.
  • An arbitrary maximum age limit imposed as a requirement for recruitment to a public office amounts to discrimination on grounds of age contrary to Article 27(4) of the Constitution.
  • The person alleging discrimination bears the burden of proving actual prejudice on a balance of probability.

Court orders

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  1. 1.Declared that including a must meet condition of being below age forty five (45) to be suitable for the office of the Managing Director was and remains a violation of the right against discrimination on age contrary to Article 27(4) of the Constitution of Kenya 2010
  2. 2.Declared that to the extent that the recruitment of the current holder of the office of Managing Director of the 1st Respondent was done in contravention of Article 27(4), the said recruitment is null and void
  3. 3.Dismissed the rest of the orders sought in the consolidated JR Application (Judicial Review Application No. 24 of 2013)
  4. 4.Ordered the 1st Respondent to meet the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 27(4), 35(1)(a) and (b), 10, 166(5), 167(1), 232(1)(g), Chapter thirteen
  • Kenya Broadcasting Corporation Act (Cap 221)Section 5(2)
  • State Corporations Act (Cap 446/441)Section 5, Section 5(1), Section 5(3), Section 4(2)
  • Pensions Actretirement age of sixty (60)
  • Legal Notice No. 93 of 2004 - State Corporations (Performance Contracting) RegulationsRegulation 4 'Autonomy and responsibilities of Board of Directors'
  • Kenya Broadcasting Corporation Code of Regulations (KBC COR)B(3)(I), (ii), (iii); B(3)(III); Article A.3
  • Government Circular dated 5th November 2004 (Guidelines of Head of Public Service)Chief Executives; Section 5(3) of the State Corporations Act
  • Government Circular dated 9th May 2008Appointment of Chief Executive Officers
  • Office of the President Guidelines dated 23rd November 2004 on Terms and Conditions of Service for State CorporationsClause 15 'Competitive Sourcing of Chief Executives'; Clause 12 'Terms and Conditions of Service for Management Staff'

Cases cited (1)

  • Associated Provincial Picture Houses v Wednesbury Corporation
    (1948) 1 KB 223
Jurisdiction invoked
Article 22 (access to court to enforce the Bill of Rights) and Article 23 (remedies for violation of the Bill of Rights), Constitution of Kenya 2010; matters consolidated by order of D. S. Majanja J.

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, "Juma v Kenya Broadcasting Corporation & 3 others (Judicial Review 24 of 2013)  (Judicial Review) [2014] KEIC 149 (KLR)", Case Analysis (2014). High Court Petition No. 425 of 2012 (consolidated with Judicial Review Application No. 339 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/149/eng@2014-12-05

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