Kefa Were & 4 others v County Assembly of Trans-nzoia & 6 others

null, void of no effect for violating Article 235 of the Constitution, Section 12 of the County Government Act and section 8 of the County Assembly Service Act. (b) An order of certiorari to bring into this court the decision of the Board approving the impugned names resulting from the interviews conducted between 1st and 3rd August 2023 and the same be quashed. (c) An order be issued compelling the 4th respondent to surcharge the persons sitting illegally in the Trans-Nzoia County Assembly Service Board for every sum of money drawn irregularly from public funds in the form of allowance. (d) An order be issued compelling the 4th respondent to file a report in this court to confirm compliance with prayer (d) above within 3 months of the judgment. (e) A declaration be hereby issued that the shortlisting and subsequent interviews of incumbents Ms Betty Mbone Nyange and Nicholas Sile for consideration for nomination was irregular and violated section 12(6) of the County Government Act No.17 of 2012. (f) That the respondents to pay costs of this petition jointly and severally. (g) Any other order/remedy deemed fit and just to grant for the cause of justice. The petitioners’ case 2. The petitioners’ main grievance in this petition is the composition of the Trans-Nzoia County Assembly Service Board (the 2nd respondent). They claim that the body was constituted unconstitutionally and in violation of the Statutes (The County Government Act No.17 of 2012 & County Assembly Service Act, 2017). 3. At the heart of this petition, is the nomination of Salina Jepkemboi Chelimo (1st interested party) and Godfrey Khalitaba Lukorito (2nd interested party) by the 2nd respondent and their subsequent appointment by the 1st respondent as members of the 2nd respondent. It is the petitioners’ case that the process of nominating and appointment of the 2 cited members was marred with irregularities and illegality. 4. First they fault the composition of the 2nd respondent during recruitment process stating that membership of the Board was irregularly composed of 7 members instead of five members as envisaged under section 12(3) of the County Government Act No.17 of 2012. That the irregular composition of the membership during the impugned process of recruitment of the members including scoring candidates interested in the job during the interviews offended the Constitution and undermined the sovereignty of the people as stipulated under Article 1 of the Constitution. 5. They aver that the impugned recruitment process violated the provisions of Article 10 of the Constitution and in particular the principles of the rule of law and good governance. They assert that the 2nd respondent acted in a manner that tainted the integrity of the process in the eyes of the public and the law and painted a picture that suggests that it was a law unto itself. 6. The petitioners aver that the 2nd respondent nominated the 1st and 2nd interested parties and transmitted their names to the 1st respondent for approval bypassing a candidate who had ranked top overall at the interview. The petitioners allege that by doing so, the respondents violated the provisions of Article 27 and 232 of the Constitution by discriminating the top candidate without any justification and without ensuring that the top candidate was accorded equal treatment and protection of the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 2

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7. It is further submitted that the participation of extra members in the impugned recruitment exercise was illegal and that it drew illegal allowances from public coffers contrary to the provisions of Article 201(d) and 232(1)(g) of the Constitution which provides for efficient, effective and economic use of public resources as a principle in the public service. 8. They claim that the 1st and 2nd interested parties had ranked 2nd and 3rd respectively yet they bypassed the top candidate and got appointed in an exercise which was required to be competitive. They claim that there was no reasonable justification for the same and that none has been offered by the respondents which in their view violates the provisions of Article 232(1) (g) of the Constitution. 9. In their written submissions dated 22/9/24 done through M/S Ocharo, Mocha & Associates for the 4th petitioner, the petitioners aver that they have met the threshold of a constitutional petition given that they have cited numerous infringements of the Constitution by the respondents. They rely on Anarita Karimi Njeru v Republic (1979)eKLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013)eKLR which expounded the holding in Anarita Karimi Njeru (supra). The petitioners submit that their petition meets the threshold set in Anariat & Matemu case. 10. On the question of whether the shortlisting and interviewing of two incumbent candidates violated the law, the petitioners contend that section 12(5)&(6) of the County Government Act in their view indicates that Betty Mmbone Nyange and Nicholas Sile the incumbents in the advertised positions were legally holding the office for one non-renewable term and were ineligible to re-apply and be shortlisted for re-appointment. 11. The petitioners submit that in appointing members of the Board under section 12(3)(d) of the County Government Act, the 1st respondent was expected to abide by the dictates of the law and the Constitution. 12. They fault the composition of the 2nd respondent during the interview stating that while section 12(3) (d) of the County Government Act provides for 5 members in the membership of County Assembly Service Board, the quorum could still be attained even if the two incumbent members who had subjected themselves to the interview process were absent because paragraph 5 of Second Schedule of County Assembly Service Act provides that the Board is duly constituted when at least 3 members are present in the meeting. 13. The 4th petitioner faults the inclusion of 5th, 6th and 7th respondents who were co-opted to participate in the impugned interview and nomination process that led to the appointment of 8th and 9th respondents. The 4th petitioner contends that there was no legal framework for co-option of other members into the Board. 14. The 4th respondent points out that while section 13(1)(2) of County Assembly Service Act provides co-option of certain members with specialized skills necessary for carrying out its functions, the coopted members are precluded under section 13(3) from voting at any sitting of the committee. The 4th petitioner contends that the 3 co-opted persons casted their votes during the interview process and scored candidates during the interview which in his view infringed the cited provisions. It is his position that the 2nd respondent was irregularly and unlawfully constituted contrary to the express provisions of section 12(2) of the County Government Act and Article 10 of the Constitution. He relies on the case of Republic v Fazul Mohammed and 3 others Ex parte Okiya Omtatah Okoiti (2018)eKLR. 15. The 4th respondent further submits that apart from the irregularity in the composition of the 2nd respondent during the interview process, the overall scoring top female candidate was bypassed and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 3

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no definite criteria was shown to have been used by the 2nd respondent to justify the bypassing of the overall top ranking candidate. 16. The 4th petitioner submits that the 2nd respondent upset the provisions of Article 232(1)(g) & section 16(1) of Public Service (Values and Principles) Act which stipulates that appointment should be based on fair competition and merit. The 4th petitioner contends that in the present legal dispensation, every appointment to the public office that does not abide by the law should be annulled. He relies on the case of Anthony v Communications Authority of Kenya & 3 Others (Petition E161 of 2021) (2022)KEELRC 1117(KLR). 17. The 4th petitioner avers that the 8th and 9th respondents were accorded a differential treatment that discriminated the overall top candidate and in his view that infringed Article 27(1)(2) of the Constitution. 18. He contends that the 8th and 9th respondents have since their impugned appointments, drawn allowances irregularly which to him is an affront to the provisions of Article 201(d) of the Constitution which provides that public resources should be used prudently and responsibly. According to him the 4th respondent should be ordered to surcharge the 5th, 6th, 7th, 8th and 9th respondents for the full sum drawn irregularly from the public finances. 19. The 1st, 2nd, 3rd, 4th, 5th, 6th, 10th and 11th respondents’ case. The above respondents have opposed this petition through a replying affidavit by Hon. Andrew Wanyonyi the 3rd respondent, sworn on 14/5/24 and CS Lupao .M. Wanjala the 4th respondent sworn on 20/9/2024. They have also put in written submissions in opposition to this petition. 20. In his replying affidavit, the 3rd respondent avers that 2 vacancies in County Assembly Public Service Board fell vacant and a need arose to fill the vacancies to meet the legal requirements of the Body (2nd respondent). It is the respondents’ case that invitations of applications from qualified members of public who were interested in the positions were done by way of adverts in the local dailies and Daily Nation in particular and that when the period of applications lapsed a total of 52 applications had been received by the 4th respondent. 21. The respondents aver that the applications were processed and qualified candidates were shortlisted for interviews by the 2nd respondent. 22. The respondents point out that section 12(3) of the County Government Act No.17 of 2017 provides for the composition of the Service Board (2nd respondent) and that section 8 of County Assembly Service Act provides guidelines on how members of the Board should be nominated adding of importance are; a. The National Values and Principles set out in Article 10 of the Constitution and b. Community and Cultural diversity of the County. 23. The respondents aver that at the time of appointment of the 2 impugned members of the Board, the Board had a quorum of 3 that is the Speaker and 2 members nominated by Political Parties under section 12(3)(c) of County Government Act. 24. They justify the inclusion of the 2 members citing Rule 8 of the 2nd Schedule of County Assembly Service Act. That in exercise of its functions and mandate and to ensure inclusivity, integrity and transparency the Board sought resolution of the County Assembly to co-opt House Party Leaders of Majority and Minority in the impugned process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 4

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25. The respondents aver that the criteria used during the interview process complied with law as it ensured equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. The respondents submit that the 2nd respondent in that spirit made a resolution that all candidates with an average score of above 70% be considered and regard be paid to Community and Cultural Diversity of the County as stipulated under section 8 of the County Assembly Service Act. 26. It is their position that using the above criteria, 13 out of 22 members had a score of 70% and above and that all of them were legible to be nominated to the Board. They submit that there is no specific provision of the law that stipulates that candidates with highest mark be nominated to the Board. Their argument is that Trans-Nzoia is a cosmopolitan County and therefore there was need for inclusivity to take care of cultural, tribal, religious and regional balances to ensure fairness, equity and inclusion in public appointments. 27. They further justify the participation of co-opted members in evaluating the candidates during the interview and awarding them marks stating that they made the process inclusive and transparent. 28. They submit that the 8th and 9th respondents were legally and validly nominated as members of the 2nd respondent. They aver that the process was above board and deny any improper influence or disregard of 1/3 gender rule. 29. The respondents through the 4th respondent’s averments in his affidavit further aver that the petition herein lacks in merit and cannot stand the test of the law. 30. They submit that the participation of the 3 extra members in the composition of 2nd respondent during the interview and nomination process did not affect the process or invalidate the outcome/resolution. They rely on the provisions of Rule 8 of the 2nd Schedule to buttress this point. It is their position that the law allows the 2nd respondent to self-regulate and in their view that means that their resolutions cannot be annulled on the basis that 3 extra persons participated. 31. They submit that the non-members co-opted cannot be faulted because they did not violate any law by participating in the impugned process and cannot be punished through surcharging them for the allowances drawn. They contend that the 3 members sat through the interview convened by the 2nd respondent. 32. On whether the shortlisting and subsequent interview of the 2 incumbents was unlawful or irregular, the respondents submits that Nicholas Sile and Betty Mmbone were duly and regularly shortlisted for interview. They justify this by their contention that section 12(3)(d) does not expressly provide that members of 2nd respondent shall serve for one term non-renewable. It is their case that there is no law limiting the membership of 2nd respondent to only one term. 33. On the question of whether the petitioners are entitled to the reliefs sought in this petition, the respondents submit that the duty of this court is to ensure that state organs comply with the law and Constitution and check any violations but not to venture into the arena of other constitutional organs without justifiable basis or due what they term constitutional compulsion. They rely on the Supreme Court decision in Justus Kariuki Mate & Another v Martin Nyaga Wambora & Anor (2017)eKLR where the court delved on the principles and doctrines of separation of powers and the extent to which the courts can interfere with process by various organs. The respondents submit that the petitioners’ case has not reached the threshold of demonstrating with precision that the impugned actions by the respondents violated the Constitution. They rely on the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 3 Others (2018)eKLR where the court held that a party https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 5

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alleging infringements to the Constitution has the duty to set out the particulars of the constitutional transgressions and plead the grounds with precision. 34. The respondents contend their actions and decision impugned by the petitioners in this petition, were proper in their view because they complied with the requirements of the law. They submit through counsel that the petitioners have not discharged their burden both legal and evidential burden and rely on the case of Nasra Ibrahim Ibren (supra). 35. This court has set out both the petitioners’ case and the respondents’ positions. The issues in this petition are basically three and can be summarized as follows; i. Whether the composition of the 2nd respondent during the interview/nomination process was regular and legal. ii. Whether the failure to nominate the highest top-ranking/scoring candidate during the interview was proper/lawful. iii. Whether the 8th and 9th respondents should be surcharged if their nominations was irregular. (i) Whether the composition of the 2nd respondent during the impugned process was regular and lawful. 36. The County Assembly Service Board is a Body created under section 12 of the County Government Act No.17 of 2012. The sections provides; (1) There shall be a county assembly service board for each county assembly. (2) The county assembly service board shall be a body corporate with perpetual succession and a common seal. (3) The Board consists of— (a) the Speaker of the county assembly, as the Chairperson; (b) a vice-Chairperson elected by the Board from the members appointed under paragraph (c);(c)two members of the county assembly nominated by the political parties represented in the county assembly according to their proportion of members in the county assembly; and (d) one man and one woman appointed by the county assembly from amongst persons who are experienced in public affairs, but are not members of the county assembly. 37. From the above position, it is evident and it is uncontested in this matter, that the membership of the County Assembly Service Board comprises a minimum of 5 members with the Speaker as the Chairperson plus the Clerk who serves as the Secretary to the Board. Subsection (d) takes care of both majority and minority sides in the County Assembly and takes care of the gender question because it provides for appointment of both male and female. 38. The petitioners’ grievance on the composition of the Board is twofold namely; i. They claim that two incumbents of the members of the Service Board were shortlisted when the law assumed that they would hold office until new members were appointed. ii. They also say that membership of the Board that did the interviews comprised of 7 members inclusive of members illegally co-opted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 6

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39. The two issues raised by the petitioners are conceded by the respondents. They have insisted that there is no law barring incumbents from applying and that the 2nd respondent is a self-regulatory body and cites Rule 8 of the 2nd Schedule of the County Assembly Service Act (Cap 265 D). 40. Now let me examine and interrogate the first question of whether the 2nd respondent was in order to shortlist the incumbents namely Betty Mmbone Nyange and Nicholas Sile. 41. It is uncontested that the 2 persons above were serving members of the 2nd respondent from the previous administration and were therefore the incumbents in the membership of the 2nd respondent. The provisions of section 12(5) of the County Government Act provides for vacation from office by a member of the Service Board. The section reads; A member of the county assembly service board shall vacate office— (a) if the person is a member of the county assembly— (i) at the end of the term of the county assembly; or (ii) if the person ceases to be a member of the county assembly; or (b) if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or (c) if the person is the Speaker, when the person ceases to be such Speaker. The provisions of subsection 6 further state; Despite subsection (5), when the term of the county assembly ends, a member of the county assembly service board under subsection (3)(d) shall continue in office until a new member has assumed office in the member’s place in the next assembly. 42. Flowing from the above, it is evidently clear that all the previous members of the Board inclusive of Betty Mmbone Nyange and Nicholas Sile were expected to be in office until the new Service Board was constituted. That period included when the process of recruitment of the new members began and ended. What is apparently clear, is that unless the cited members had vacated office in the manner provided under section 12(5) & (6) above or resigned, they were ineligible to vie or apply for the position because of the attendant conflict of interest. While I agree with the respondents that no law bars incumbents from being shortlisted, they can only do so if at the time of offering themselves as candidates for the advertised positions they have ceased being members. 43. There is no evidence presented before me that at the time the cited candidates applied and were shortlisted, they had ceased being members of the 2nd respondent. The petitioners’ grievance in that respect is therefore legitimate and I so find. 44. Secondly, on the question of the membership of the 2nd respondent at the material time of the interview, it is evident going by the evidence laid before me vide exhibits “KF2” titled “Report of the County Assembly Service Board, August 2023” that Service Board comprised the following; i. Hon Andrew Wanyonyi (Chairperson) ii. Hon Obed .M. Mwale (Deputy Speaker) iii. Hon Edwin Koech (Majority leader) iv. Hon Kibet Kipkee (Member, majority representative) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 7

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v. Hon Eric Mwangale (Minority leader) vi. Hon Alfred Weswa (Member representing minority) vii. CS Lupao Wanjala (Secretary) 45. It is therefore evident that the membership of the 2nd respondent at the material time comprised 7 and not five as provided under the law. It is quite obvious that the composition of the 2nd respondent during the recruitment process was a departure from the law and in particular the cited provisions of section 12(3) of the County Government Act No.17 of 2012. 46. The respondents have not denied departing from the cited provision of the law. What they have attempted to do is to justify the departure by relying on the provision of paragraph 8 of the 2nd Schedule of the County Assembly Service Act. However my reading of the cited Schedule shows that it relates to the conduct of business and affairs of the Board rather than the composition of the Board. The paragraph reads; “ Provisions as to the conduct of the business and affairs of the Board” and it shows how meetings of the Board are to be held, quorum for such meetings etc. Paragraph 3 states that a quorum should comprise at least 3 members and paragraph 8 cited by the respondents envisages a situation where all the 5 members may not be all present at a meeting. It states; In nominating or appointing any person as a member of the Board under section 12(3)(d) of the County Governments Act (Cap. 265), the county assembly shall have regard to — (a) the national values and principles set out in Article 10 of the Constitution; and (b) community and cultural diversity of the county." 47. This court finds that while the 2nd respondents are required to regulate the conduct of its business, it can only do so as provided by law. It lacks the mandate or authority to co-opt members to its statutory provided membership as clearly stipulated under section 12(3) of the Act. There is simply no room to depart from the provision of that section in the establishment of a Service Board or holding a meeting as County Service Board. 48. The respondents’ action in constituting the 2nd respondent for purposes of conducting the shortlisting and carrying out the interviews was ultra vires, null and void. There is nothing lawful that can come out of an irregular process carried out by a body constituted in a manner that flouts the law. 49. The Constitution under Article 10(2) espouses national values and principles of governance to include; The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; (c) good governance, integrity, transparency and accountability; and (d) sustainable development In situations where a public body such as the 1st, 2nd, 3rd and 4th respondents acts outside the law, then obviously they undermine the very rule of law espoused in the Constitution. Nothing can justify such https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 8

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actions not even the claims by the respondents that they wanted to ensure inclusivity, transparency etc. The same principles are what underpins the Constitution and the laws of this Country. 50. The respondents have urged this court not to intervene in affairs done by other organs of state created by law but under Article 165(3) (d) (iii) this court is empowered with the jurisdiction to intervene when those organs act outside the law or take actions that are inconsistent with any provisions of the law. That is the holding in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013]eKLR. where the court inter alias held as follows;“ …………..the High Court had jurisdiction to review and set aside the appointment of the appellant on grounds of constitutionality or legality. We make this conclusion based on Article 165(3) (d) (iii) of the Constitution which grants the High Court jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of a question regarding whether an appointment by any organ of government is inconsistent with or in contravention of the Constitution…..” 51. This court therefore finds that the 2nd, 3rd and 4th respondents’ action with regard to the composition of the Service Board to carry out the recruitment process was marred with the cited illegality and the respondents cannot be allowed to shield themselves from the obvious illegality by citing the doctrines of separation of powers. The doctrine can only be invoked where each organ operates within the confines and the scope of the Constitution and the law. When one operates outside like in this case, they must be called out. (ii) Whether the failure to nominate the highest ranking candidate during the interview was proper/ lawful. 52. The petitioners fault the respondents for not appointing the candidate that had scored the highest. The respondents on the other hand have justified their decision stating that they had other criteria like ethnic balance, cultural and other considerations to factor in. The provisions of Article 232(1) of the Constitution provides for values and guidelines to public bodies when carrying out their duties. The provisions state; (1) The values and principles of public service include— (a) high standards of professional ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making; (e) accountability for administrative acts; (f) transparency and provision to the public of timely, accurate information; (g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions; (h) representation of Kenya’s diverse communities; and (i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of— (i) men and women; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 9

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(ii) the members of all ethnic groups; and (iii) persons with disabilities. It is apparent from the foregoing that scoring highest in an interview is not the only consideration for a public body carrying out an interview in declaring the candidate duly appointed. Other factors are considered to align with the above cited dictates because what would happen if say the 2nd respondent was to advertise for 5 vacancies and candidates from a dominant ethnic group in a cosmopolitan area scores higher than other candidates from the minority? The Constitution itself provides under Article 10 as read with Article 232 that principles of inclusivity, protection of the marginalized and equity should be adhered to. 53. The petitioners to that extent cannot fault the respondents solely on ground of not picking the highest scoring candidates. There are no sufficient grounds to fault them. It should however not be lost that a public body or organ during recruitment must be guided by the national values and principles. They must be transparent, accountable and exhibit integrity in their decisions. (iii) Whether the 8th and 9th respondents should be surcharged for drawing allowances when their nominations were irregular 54. This court finds that though I have found out that the appointments of 8th and 9th respondents were irregular, null and void on grounds of illegality/unconstitutionality, it would be punitive to punish them by surcharging them. This is because they did not appoint themselves. They had no role in the illegal or irregular composition of the 2nd respondent. They have carried out their duties in good faith thinking that their appointments were regular. I therefore do not find it fair to surcharge them. In the end for the reasons advanced, this court finds merit in this petition and grants the following reliefs; a. A declaration is hereby made that the appointments of Godfrey Lukorito and Salina Jepkemoi Chelimo and approved by 1st respondent, then gazetted in Kenya Gazette Notice VOL CXXXV-No.184 Gazette Notice NO.11020 of 18th August 2023 are invalid and unconstitutional for violating Article 10, and 232 of the Constitution and section 12(3) of County Government Act (Cap 265). b. The impugned appointments contained in the Kenya Gazette VOL CXXXV-No.184 No.11020 of 18/8/23 are hereby quashed. c. A declaration is hereby made that the composition of Trans-Nzoia County Service Board, the 2nd respondent, is irregular for including/co-opting extra members contrary to the provisions of section 12(3) of County Government Act. d. An order is hereby issued compelling the 4th respondent to file a report to confirm compliance with constitution of the Service Board in compliance with section 12(3) of the County Government Act within 60 days from the date of this judgment. This being a public interest litigation, I will not make any other as to costs. So each party to bear own costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 7TH DAY OF OCTOBER, 2025. HON JUSTICE R.K. LIMO KITALE HIGH COURT https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 10

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Judgment delivered in open court In the presence of Mocha for the Petitioners Chebet for 1st to 6th, 8th, 9th & 11th Respondents Eyase for 1st, 2nd, 3rd, 4th, 5th, 6th & 11th Respondents Wekhuyi for 7th Respondents Court assistants – Duke/Chemosop https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13960/eng@2025-10-07 11

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