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Supreme CourtAllowedPetition 21 (E023) of 2020

Member of Parliament Balambala Constituency v Abdi & 7 others

Supreme Court of Kenya
16 June 2023
12,046 words in judgment
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AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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Supreme Court: recruiting chiefs is not public policy, no public participation required.

What this practically means

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The Supreme Court ruled on a case about advertisements for chiefs in Garissa. It found that administrative units like locations are different from electoral boundaries like constituencies. Therefore, a previous court order about constituency boundaries did not apply. Recruitment of a chief is an individual job application, not a public policy decision, so no public participation is needed. Also, the 2013 law on national government coordination cannot apply to units created before it was passed.

Executive summary

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The Supreme Court allowed the appeal by Hon. Aden Bare Duale, setting aside the judgments of the Court of Appeal and High Court. The dispute arose from advertisements issued in May 2015 by the Cabinet Secretary for Interior for positions of Chief and Assistant Chief in Garissa County. The 1st respondent challenged these advertisements, claiming they created new administrative units without public participation and violated a prior High Court decision on electoral boundaries. The High Court and Court of Appeal both found in favour of the 1st respondent, holding that the 2nd respondent had violated the Constitution and the National Government Coordination Act. The Supreme Court reversed these decisions, finding that the lower courts had completely misapprehended the case. The Court held that the prior High Court decision in Nairobi Judicial Review Application No 120 of 2012 dealt with delimitation of electoral boundaries (constituencies and wards), not administrative units (locations and sub-locations), and therefore did not apply. The Court further held that administrative units are fundamentally different from electoral units, with the former being created by the national government under section 14 of the National Government Coordination Act and the latter by IEBC under Article 89 of the Constitution. On public participation, the Court ruled that recruitment of Chiefs and Assistant Chiefs under section 15 of the Act is an individual employment matter that does not require public participation. The Court also found that the National Government Coordination Act 2013 could not apply retrospectively to administrative units created in 2010. The Court allowed the appeal, set aside the lower court judgments, and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to determine the appeal
  2. 2.The effect of the proceedings and consequential declarations by the High Court in Nairobi Judicial Review Application No 120 of 2012 that was heard and consolidated with Republic v Independent Electoral and Boundaries Commission & another; ex-parte Councillor Eliot Lidubwi Kihusa & 5 others, Judicial Review Misc Application No 94 of 2012; [2012] eKLR as well as Peter Odoyo Ogada v IEBC & 14 others; Civil Appeal No 307 of 2012 [2013] eKLR
  3. 3.The difference between electoral units and administrative units
  4. 4.Whether there was need for public participation in the creation of administrative units and if so
  5. 5.Whether the provisions of section 4 of the National Government Coordination Act were applicable in the creation of administrative units

Key legal issues

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01

Whether the High Court and Court of Appeal erred in applying the orders in Nairobi Judicial Review Application No 120 of 2012 to the present dispute concerning administrative units.

Holding

The superior courts misapprehended the case; the orders in the Judicial Review application concerned delimitation of constituency boundaries (electoral units), not the creation of administrative units (locations and sub-locations) which was the subject of the advertisements.

Reasoning

The Supreme Court examined the orders in Nairobi Judicial Review Application No 120 of 2012 and found they dealt with moving Medina and Alango-Arba sub-locations between constituencies and wards. The present case concerned advertisements for Chief and Assistant Chief positions in Abdisamit Location, Auliya and Laago sub-locations. The Court held that an advertisement for administrative positions cannot create constituencies, and the superior courts were misguided in finding that the Judicial Review orders applied. The issues were fundamentally different: one was about electoral boundary delimitation by IEBC, the other about administrative unit recruitment by the national government.

02

Whether the Court of Appeal decision in Peter Odoyo Ogada v IEBC & 14 others was in rem or in personam.

Holding

The decision was in personam, applying only to the parties in that appeal concerning Suba North and Suba South constituencies, and had no relation to the issues in the present petition.

Reasoning

The Supreme Court defined a judgment in personam as one that determines rights and interests of the parties themselves and binds only the parties to it. The Court of Appeal decision in Peter Odoyo Ogada only set aside the decision regarding Suba North and Suba South constituencies. It was independent and distinct from the present matter concerning administrative units in Garissa County. Therefore, it did not apply to the proceedings before the trial court.

03

Whether the National Government Coordination Act 2013 applied retrospectively to administrative units created in 2010.

Holding

The Act cannot apply retrospectively; the administrative units were created in 2010, before the Act was enacted in 2013, and statutes do not have retrospective effect unless expressly stated.

Reasoning

The Supreme Court found that the administrative units (Abdisamit Location, Auliya and Laago sub-locations) were created on 3rd November 2010 through a letter from the Permanent Secretary. The National Government Coordination Act was enacted in 2013. Citing Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, the Court held that the general rule is that statutes are prospective unless by express words or necessary implication they are intended to be retrospective. The Court of Appeal erred in upholding the High Court's finding that the 2nd respondent contravened section 4 of the Act.

04

Whether public participation was required in the issuance of advertisements for the positions of Chief and Assistant Chief.

Holding

Public participation is not required for recruitment of administrative officers under section 15 of the National Government Coordination Act, as it is an individual employment matter and not a public policy decision.

Reasoning

The Supreme Court distinguished between public policy decisions requiring public participation under Article 10 of the Constitution and administrative acts like recruitment. Issuing advertisements for vacancies is an administrative act to enable day-to-day operations, not a public policy decision. Section 15 of the Act provides for recruitment by the Public Service Commission in consultation with the Cabinet Secretary. Requiring public participation for such individual employment applications would be absurd. The Court cited British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health to emphasise that public participation applies to making or implementing public policy decisions, not routine administrative acts.

Legal principles established

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  • Administrative units (locations, sub-locations) are distinct from electoral units (constituencies, wards) and created by the national government.
  • Recruitment of chiefs and assistant chiefs is an individual employment matter not requiring public participation.
  • Statutes do not apply retrospectively unless expressly stated; the 2013 Act does not govern administrative units created in 2010.
  • A judgment in personam binds only the parties to that case, not third parties on different issues.
  • Orders from a judicial review case on electoral boundary delimitation do not apply to administrative unit recruitments.

Court orders

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  1. 1.The petition of appeal dated December 16, 2020 and filed on December 21, 2020 is hereby allowed.
  2. 2.The Judgment of the Court of Appeal dated November 20, 2020 is hereby set aside.
  3. 3.The Judgment of the High Court dated October 4, 2017 is hereby set aside.
  4. 4.The amount of Kshs 6000/= deposited in court as security for costs be and is hereby released to the appellant.
  5. 5.Each party shall bear the costs of this appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 424 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From our reading of the orders issued in Republic v IEBC & 2 others; Nairobi Judicial Review Miscellaneous Application No 94 of 2012, it clearly emerges that the learned Judge of the High Court and the learned Judges of Appeal completely misapprehended the case before them.
p. 18 Misapprehension of issues by lower courts
We are therefore in agreement with the appellant's submission that administrative units are different from electoral units in relation to the manner in which they are created.
p. 22 Distinction between administrative and electoral units
There is no requirement for public participation because an application for employment is an individual affair that does not require the participation of the public.
p. 26 Public participation not required for recruitment
the administrative units comprising Abdisamit Location and Auliya and Laago sub-locations were created in 2010 and an Act passed in 2013 cannot apply to matters that happened in 2010 before the enactment of the Act.
p. 24 Non-retrospectivity of statutes
Each party shall bear the costs of this appeal.
p. 28 Costs order

Key timeline

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2010-11-03
Administrative units Abdisamit Location, Auliya and Laago sub-locations created by Permanent Secretary.
2015
Advertisements for Chiefs and Assistant Chiefs in those units issued.
2017-10-04
High Court judgment set aside the advertisements.
2020-11-20
Court of Appeal upheld the High Court judgment.
2023
Supreme Court allowed the appeal, setting aside lower court judgments.

Practical implications

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For lawyers

Distinguish administrative from electoral units in pleadings

When litigating boundary or recruitment issues, ensure you correctly identify whether the case involves administrative units (locations) under the National Government Coordination Act or electoral units (constituencies) under Article 89 of the Constitution. Using precedent from electoral cases (e.g., Peter Odoyo Ogada) for administrative recruitment is erroneous. Also verify whether prior judgments are in personam and thus limited to the original parties.

For businesses

Recruitment of government administrative officers: no public participation hurdle

If your business contracts with or recruits for government administrative roles (e.g., chiefs), the Supreme Court confirmed that such recruitment is an individual employment matter, not a public policy decision. You do not need to conduct public participation for these appointments. However, any creation of new administrative units may still require public participation, so distinguish between creating posts and filling them.

For individuals

No right to block chief recruitment via public participation

If you are a community member opposed to a chief's appointment, you cannot demand public participation as a constitutional right for the recruitment process itself. The Supreme Court held it is an individual employment matter under section 15 of the National Government Coordination Act. However, you may still challenge the creation of new administrative units if that process lacked public participation, as that is a policy decision.

Frequently asked questions

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Does the recruitment of chiefs in Kenya require public participation?+

No, according to the Supreme Court. Recruitment of chiefs and assistant chiefs is an individual employment matter under section 15 of the National Government Coordination Act, not a public policy decision. Therefore, public participation under Article 10 of the Constitution is not required.

What is the difference between administrative units and electoral units in Kenya?+

Administrative units like locations and sub-locations are created by the national government under the National Government Coordination Act. Electoral units like constituencies and wards are delimited by the IEBC under Article 89 of the Constitution. They serve different purposes and follow different legal procedures.

Can a law passed in 2013 apply to administrative units created in 2010 in Kenya?+

No, unless the law expressly states retrospective application. The Supreme Court held that the National Government Coordination Act 2013 cannot apply to administrative units created in 2010. This follows the general principle that statutes operate prospectively.

What happened in the Duale case at the Supreme Court of Kenya?+

The Supreme Court allowed Hon. Aden Bare Duale's appeal, setting aside the lower court judgments. It ruled that advertisements for chiefs in Garissa were lawful because they concerned administrative units, not electoral boundaries, and did not require public participation or retrospective application of the 2013 Act.

Cite this brief

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Cite this brief

Caselaw, "Member of Parliament Balambala Constituency v Abdi & 7 others", Case Analysis (2023). Petition 21 (E023) of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/35/eng@2023-06-16

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