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Court of AppealPartially AllowedNot stated in the judgment

Cabinet Secretary, Ministry for the National Treasury and Economic Planning & another v Mamo & 13 others (Civil Appeal E143 of 2024) [2025] KECA 770 (KLR)

Court of Appeal of Kenya
9 May 2025
7,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the government can revoke board appointments, but only after giving notice, reasons, and a hearing.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Asike-Makhandia and Ngugi, JJA) dismissed in part an appeal against a High Court decision that quashed Gazette Notices revoking the appointments of the 1st-5th respondents as board members of the Local Authorities Provident Fund Board. The petition had been filed in the ELRC and transferred to the High Court. The Court held that the transfer was valid under rule 8 of the Mutunga Rules and the binding decision in Daniel N. Mugendi v Kenyatta University, distinguishing the line of cases (including Equity Bank v Mutie Mutuku and the Supreme Court's decision in Mumba) that prohibit transferring suits filed in courts lacking jurisdiction. On the merits, the Court held that the appointees, though appointed without merit-based selection, became public officers under Article 260; their revocation without notice, reasons or a hearing was arbitrary and violated Articles 47 and 236. Pre-2010 statutes could not be construed as limitations on Article 47, since section 7 of the Sixth Schedule requires old law to be conformed to the Constitution. However, the Court allowed the appeal in part: given the opaque, non-merit manner of appointment, the appointees had no legitimate expectation to serve the full three-year term, only that any removal comply with due process. The trial court's legitimate-expectation finding was set aside to that limited extent, and each party was directed to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the trial court had jurisdiction to hear and determine the Amended Petition although it was transferred to it by the ELRC
  2. 2.Whether the trial court erred in finding that the 1st-5th respondents established violation of their rights under Articles 47 and 236 of the Constitution and of their legitimate expectation to serve on the Board for the full three-year term
  3. 3.Whether the trial court erred in finding that the 1st appellant acted in violation of the Constitution in revoking the 1st-5th respondents' appointments and appointing the 6th-12th respondents

Key legal issues

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01

Whether the High Court had jurisdiction over a constitutional petition transferred to it by the ELRC

Holding

The transfer was valid; the trial court had jurisdiction.

Reasoning

The decisions relied on by the appellants (Equity Bank, Phoenix, Mumba) concerned transfer of suits filed in courts lacking jurisdiction. This matter was a constitutional petition under Article 22 governed by the Mutunga Rules, rule 8 of which permits transfer, and this Court's binding decision in Mugendi directs courts of equal status to transfer such matters among themselves.

p. 10
02

Whether the revocation of the 1st-5th respondents' appointments violated Articles 47 and 236 of the Constitution

Holding

Yes; the revocation without notice, reasons or a hearing was arbitrary and unconstitutional.

Reasoning

The appointees were public officers under Article 260 once appointed; the statutory power of appointment and revocation had to be exercised in conformity with Articles 10, 47, 236 and Chapter 6. Pre-2010 statutes cannot be read as limitations on Article 47; section 7 of the Sixth Schedule requires existing law to be conformed to the Constitution.

p. 12
03

Whether the appointees had a legitimate expectation to serve the full three-year term

Holding

No; the trial court erred on this point.

Reasoning

Their appointments were not merit-based and were made for no discernible reason, hence at the pleasure of the appointing authority. Following Pharmaceutical Manufacturing, a legitimate expectation requires an express, clear and unambiguous promise. Their only legally grounded expectation was that any removal would comply with Articles 47 and 236 and the Fair Administrative Actions Act.

p. 13

Legal principles established

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  • Holders of offices under the Local Authorities Provident Fund Act or the State Corporations Act who act for the public, administer public resources and are paid from public funds are public officers under Article 260, and their removal must comply with Articles 10, 47 and 236 of the Constitution
  • Statutory power to appoint and revoke public appointments, however broad, must be exercised in accordance with constitutional principles of fair administrative action, including notice and reasons
  • Pre-2010 legislation must be construed with the alterations, adaptations, qualifications and exceptions necessary to conform with the Constitution; it cannot be read as a limitation on constitutional rights
  • Under the Mutunga Rules and Daniel N. Mugendi, the High Court and courts of equal status have jurisdiction to transfer constitutional petitions filed under Article 22 to courts of competent jurisdiction
  • Persons appointed to public boards on opaque political or other non-merit considerations acquire procedural rights as public officers but have no legitimate expectation to serve the full stated term

Court orders

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  1. 1.Appeal allowed only to the extent that the trial court's finding on legitimate expectation is set aside
  2. 2.Findings of the trial court on jurisdiction and on the violation of Articles 47 and 236 of the Constitution affirmed
  3. 3.Each party to bear its own costs of the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya, Constitutional and Human Rights Division
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution (first appeal from the High Court); petition originally instituted under Article 22 of the Constitution

Relief refused

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Upholding the trial court's finding that the 1st-5th respondents' legitimate expectation to serve the full three-year term was violated

The appointments were not merit-based and were at the pleasure of the appointing authority; the only protected expectation was that any removal would follow due process

p. 13

Costs

Each party to bear its own costs of the appeal

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.

We are therefore satisfied that the trial court properly found that the 1st appellant exercised power arbitrarily in revoking the appointment of the 1st to 5th respondents from the Board.
p. 12Arbitrary revocation of public board appointments
it is legislation predating the Constitution that must be construed with the ‘alterations, adaptations, qualifications and exceptions’ required to make it conform with the constitutional imperatives under the 2010 Constitution.
p. 11Construal of pre-2010 legislation under section 7 of the Sixth Schedule
There is thus binding jurisprudence from this Court and Rules made by the Chief Justice in compliance with the constitutional directions under Article 22(3) that expressly grant the High Court and, by extension, courts of equal status, jurisdiction to transfer petitions filed under Article 22 to courts of competent jurisdiction.
p. 10Jurisdiction to transfer constitutional petitions
given the manner of their appointment, they did not have a legitimate expectation to remain on the Board for the term indicated in their letters of appointment.
p. 13Legitimate expectation of non-merit appointees
In light of our findings above, we direct that each party bear its own costs of the appeal.
p. 13Costs - final orders

Issues in the judgment

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minor

The judgment refers to section 5 of the Local Government Provident Fund Act in some places and section 5 of the Local Authorities Provident Fund Act / section 7(3) of the State Corporations Act in others, with inconsistent naming of the governing statute

minor

The appellants' submissions attribute the appointing power to section 7(3) of the State Corporations Act while the analysis refers to section 5 of that Act, without reconciling the two

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, "Cabinet Secretary, Ministry for the National Treasury and Economic Planning & another v Mamo & 13 others (Civil Appeal E143 of 2024) [2025] KECA 770 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/770/eng@2025-05-09

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