Governor Bungoma County v John Mining Temoi & 19 others [2019] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that being a small community doesn't automatically make a group 'marginalised' under the Constitution, and struck down Bungoma County's special-status declaration.
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 appeal had become moot given that the impugned Chief Officers had served their terms
- 2.Whether the High Court erred in declaring Bongomek Community a marginalised community or minority group entitled to affirmative treatment in the governance of Bungoma County
- 3.Whether the recruitment of the Chief Officers was unconstitutional, which the court declined to determine as moot
Key legal issues
#Mootness of the recruitment-related grounds
The appeal on the nullification of the recruitment process was moot because the Chief Officers had lawfully completed their five-year contractual terms while execution was stayed; the court confined itself to the marginalisation question which outlived the judgment.
The Chief Officers were employed on five-year contracts coinciding with the term of the county government. Execution of the impugned judgment was stayed and the officers completed their terms. The petitions targeted a specific recruitment process and specific officers, so no practical significance remained except on the marginalisation question.
Whether Bongomek Community is a marginalised community or group under Article 260
The High Court's finding was per incuriam because it ignored the constitutional definitions; the indicators it used (absence of representation in governance and jobs) fall outside the Article 260 definitions, and the pleaded case was of a minority, not a marginalised, community.
Article 260 defines marginalised community in four categories and marginalised group by reference to discrimination under Article 27(4). The trial court used a dictionary definition instead. The factors it relied on do not fit the constitutional definitions, and its final declaration of 'minority group' was inconsistent with its own finding of 'marginalised community', the two not being synonymous.
Whether failure to appoint a Bongomek Community member as Chief Officer was discrimination under Article 27(4)
No discrimination was proved; it was not shown that a community member competitively qualified on merit but was denied appointment because of community membership. In fact Protus Kirui from the community was ranked third in his category.
The declaration sought concerned a specific recruitment exercise. Discrimination in the legal sense requires differential treatment on a prohibited ground. The evidence showed a community member was shortlisted and ranked third, and that selection was based on sub-county representation, so no causal link between community membership and non-appointment was established.
Role of legislation and affirmative action in protecting minorities within counties
Grievances of minorities are progressively realised through affirmative action programmes, policies and legislation under Articles 27(6), 56 and 197(2)(b); absent such frameworks, courts are ill-equipped to identify minorities or craft appropriate relief.
Relying on the Supreme Court's Advisory Opinion No. 2 of 2012, the court held affirmative action requires careful, methodical, staged measures. Since Parliament had not enacted legislation prescribing mechanisms to protect minorities within counties, the trial court's broad declaration was vague, exceeded the employment dispute, and usurped a legislative function.
Legal principles established
#- A minority community is not synonymous with a marginalised community or marginalised group under Article 260 of the Constitution; the two concepts are distinct
- Courts cannot make open-ended declarations that a community is marginalised where the constitutional definitions in Article 260 have not been satisfied and where no legislative or affirmative action framework exists
- An employment discrimination claim fails unless it is shown that a member of the claimant community competitively qualified on merit but was denied appointment wholly or mainly because of community membership
- The principle of inclusiveness in appointments applies only to candidates who have met the applicable appointment criteria
Court orders
#- 1.The appeal allowed only to the extent of the declaration concerning the marginalisation/minority status of Bongomek Community
- 2.The High Court's declaration that Bongomek Community is a minority group to be treated as such in the governance of Bungoma County set aside
- 3.The order of costs in the High Court set aside
- 4.Each party to bear their own costs of the appeal and of the costs in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that the recruitment-related findings were moot because the Chief Officers had served their five-year terms; confined the appeal to the marginalisation question. Found the High Court's declaration that Bongomek Community is a marginalised group/minority group to be unsupported, per incuriam of the Article 260 definitions, and inconsistent with the pleadings; would allow the appeal to that extent and set aside the declaration and costs orders.
For the foregoing reasons, I find the High Court erred in law and in fact in declaring Bongomek as a marginalised group or a minority group and entitled to right in the governance of Bungoma County.p. 7
Wrote the judgment
Concurring judgment agreeing entirely with Mohammed JA; affirmed that a minority community is not synonymous with a marginalised community and noted the delivered judgment was under Rule 32(3) as Githinji JA had retired.
I am in entire agreement with the law and the analysis set out in the judgement. Under the Constitution a minority community is not synonymous with a marginalized communityp. 7
- On appeal from
- High Court of Kenya at Bungoma
- Constitution Petition No. 2 & 2A of 2014 (Consolidated)
- Jurisdiction invoked
- First instance constitutional petition appealed to the Court of Appeal under Article 164 of the Constitution (Court of Appeal Rules); the judgment does not invoke a specific appellate provision, but Rule 32(3) of the Court of Appeal Rules governed delivery after a judge's retirement.
- Consolidated with
- Constitution Petition No. 2 & 2A of 2014 (Consolidated)
Relief refused
#Determination of the grounds challenging the nullification of the recruitment process
The appeal on recruitment grounds had become moot as the Chief Officers lawfully completed their five-year terms under a stay of execution
Costs
Each party to bear their own costs of the appeal and of the costs in the court below
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.
Accordingly, I would allow the appeal to that extent and set aside the declaration as well as the order of costs in the High Court and order each party to bear their own costs of the appeal and of the costs in the court below.
Accordingly, the appeal is allowed, the judgment and orders made by the lower court are hereby set aside and the respondents’ petition is dismissed. Each party shall bear its own costs of the appeal and costs of the court below.
Under the Constitution a minority community is not synonymous with a marginalized community and clearly there was contradiction in the judgment of the lower court.
A marginalised community suffers from deprivation of national social and economic resources because of its status. A marginalised group is disadvantaged by discrimination caused by laws and practices.
In the premises, save for the question of marginalisation of Bongomek Community, the appeal has become moot. It has no practical significance either to the appellant or to the chief officers.
Issues in the judgment
#The coram lists three judges but the judgment records that Githinji JA had retired by the time of delivery and that the judgment was delivered under Rule 32(3) by the remaining two judges
The concurring judgment of Okwengu JA states 'the appeal is allowed' and 'the respondents’ petition is dismissed' without limitation, whereas the leading judgment allows the appeal only on the marginalisation issue and treats the rest as moot
The judgment records that each party was ordered to pay its own costs of the petition at first instance, but a consent order of 24th November 2014 on review required the petitioners to be paid costs of Shs. 5,000,000/-, creating internal tension about the first-instance costs position
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Governor Bungoma County v John Mining Temoi & 19 others [2019] KECA 29 (KLR)", Case Analysis (2019). Civil Appeal No. 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/29/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.