Benjamin v General & 55 others (Civil Appeal E722 of 2023) [2024] KECA 1672 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a challenge to Principal Secretaries' appointments because the petitioner skipped a required statutory objection procedure before Parliament.
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 ELRC erred in law in dismissing the petition because the appellant failed to invoke and exhaust the dispute resolution mechanism provided for in the Public Appointments (Parliamentary Approval) Act, 2011
- 2.Whether the ELRC applied the doctrine of justiciability correctly
- 3.(Urged but declined) Whether the High Court or the ELRC has jurisdiction to determine the constitutionality of executive appointments of Principal Secretaries
Key legal issues
#Exhaustion of the statutory procedure under section 6(9) of the Public Appointments (Parliamentary Approval) Act, 2011
The failure to lodge a written statement on oath with the Clerk before the approval hearing was a serious bar precluding the constitutional challenge, and the ELRC was right to strike out the petition on that ground (save as regards the 52nd respondent).
The Act's objective is to provide procedures for parliamentary approval of constitutional and statutory appointments. Section 6(9) allows any person, prior to the approval hearing and by written statement on oath, to give the Clerk evidence contesting a candidate's suitability. The appellant admittedly did not comply. Binding authority from the Supreme Court and this Court requires exhaustion of such statutory mechanisms before recourse to the courts, to avoid forum shopping. The appellant's grievances fell squarely within the purposes for which the Act's procedure was enacted.
Correct application of the doctrine of justiciability
The main reason for striking out the petition was non-exhaustion of the statutory procedure, not non-justiciability; in any event the justiciability doctrines would not bar a constitutional challenge moved through the prescribed procedure.
The Court read the impugned ruling and found that the petition collapsed primarily on want of exhaustion, as augmented by justiciability. It explained that non-justiciability comprises the political question, constitutional avoidance and ripeness doctrines, none of which would prevent interrogation of constitutional compliance by the Executive or Legislature — but the court must be moved in accordance with the prescribed statutory procedure. The trial court had also affirmed its own jurisdiction to review the decisions on legality, constitutionality, unreasonableness and manifest injustice.
Judicial restraint in light of pending related matters
The Court restrained itself from making determinations that could prejudice live ELRC proceedings on the same appointments or embarrass the bench seized of an appeal on the jurisdictional question.
Counsel for the 2nd respondent informed the Court of live ELRC matters concerning the constitutionality of appointment of Principal Secretaries, including Petition No. E513 of 2022, which was not disputed. The Court therefore exercised restraint because the appeal arose from a ruling on a preliminary issue. Similarly, on the rival jurisdiction of the High Court and ELRC, since the trial judge had found the issue addressed in a ruling itself under appeal, the Court declined to pronounce on it.
Legal principles established
#- Where a statute prescribes a dispute-resolution or objection procedure for public appointments, that procedure must be exhausted before a court is moved; courts are fora of last resort and failure to exhaust bars the petition.
- Non-justiciability doctrines (political question, constitutional avoidance, ripeness) do not bar a court from interrogating whether the Executive or Legislature violated the Constitution, provided the prescribed statutory procedure is followed.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs of the appeal
- 3.Court exercised restraint so as not to prejudice pending matters before the ELRC relating to the appointments
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC), Nairobi
- Constitutional Petition dated 5th December 2022 (related ruling in Nairobi ELRC Constitutional Petition No. E186 of 2022 consolidated with E189 of 2022 and E192 of 2022, delivered 29th November 2022)
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC (the judgment does not recite the specific provision; the appeal challenged the ELRC ruling striking out the petition)
Relief refused
#Appeal / declarations that the appointments of Principal Secretaries were unconstitutional
The appellant did not exhaust the statutory procedure under section 6(9) of the Public Appointments (Parliamentary Approval) Act, 2011, and the trial judge correctly applied binding precedent
Determination of whether the High Court or ELRC has jurisdiction over constitutionality of appointments of Principal Secretaries
The trial court had already found the issue adequately addressed in a ruling under appeal; pronouncing on it may embarrass the bench seized of that appeal
Costs
Each party shall bear its own costs of the appeal (the trial court had likewise ordered each party to bear its own costs of the petition).
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.
All in all, save what we have stated herein regarding the concept of justiciability, we find this appeal unmeritorious and proceed to dismiss it. Each party shall bear its own costs of the appeal.
However, none of these doctrines would bar a court from interrogating whether the Executive or the Legislature violated the Constitution in the nomination and approval of the persons concerned. But the Court must be moved in accordance with the prescribed statutory procedure.
It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…
It is not in dispute that the appellant did not comply with the statutory procedure of contesting the suitability of the proposed persons.
We must therefore exercise restraint in our determination of this appeal, which arose from a ruling on a preliminary issue, so that we do not prejudice any of the parties in the pending matters.
Issues in the judgment
#The judgment does not state the ELRC case number of the petition under appeal or the name of the trial judge, and the appellant's name does not appear in the text; the appeal is identified only as arising from a petition dated 5th December 2022.
The coram lists 'D. K. MUSINGA, (P.)' as President of the Court of Appeal, but no judge is identified as author of the judgment and no rank suffixes appear beyond 'JUDGE OF APPEAL'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin v General & 55 others (Civil Appeal E722 of 2023) [2024] KECA 1672 (KLR)", Case Analysis (2024). Court of Appeal, Nairobi — Civil Appeal from Nairobi ELRC Constitutional Petition (petition dated 5th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1672/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.