Elisha Mien Owalla v Attorney General Republic of Kenya & 4 Others [2018] KEELRC 68 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Has the Petitioner proved any violation of his rights by the Respondents as alleged or at all?
- 2.Is the Petitioner entitled to the reliefs sought?
Key legal issues
#Whether the appointment of the 5th Respondent as Assistant Chief violated constitutional or statutory requirements, including residency
No violation; the petitioner failed to discharge the burden of proving she was not a resident, and the appointment complied with gender-balance requirements
The petitioner alleged the 5th Respondent was not a resident of Nyawita Sub-Location. The Respondents rebutted this by affidavit evidence that she resided in rented premises in the cosmopolitan urban sub-location. The petitioner's supplementary affidavit merely speculated without proof. The court also held that appointing the 3rd-ranked candidate, a woman, in a sub-county where all chiefs and five of seven assistant chiefs were male, satisfied the constitutional mandate of affirmative action under Articles 27(8) and 81(b).
Whether the petitioner was entitled to the reliefs sought
Not entitled; petition dismissed
Having failed to prove any violation of rights, the petitioner could not obtain the declarations and orders sought. The appointment process was competitive, scored independently by panelists, and no objections were raised by the public to the shortlist other than the residency issue, which was rebutted.
Legal principles established
#- A person alleging specific facts must prove them on a balance of probabilities and cannot shift the burden to the Respondents
- Affirmative action favouring a female candidate in a male-dominated public office is constitutionally mandated
Court orders
#- 1.The Petition is dismissed with no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 27(8) and 81(b) of the Constitution of Kenya, 2010 (petition on alleged violation of constitutional provisions in public service appointment)
Relief refused
#Declaration that the process leading to the appointment of Assistant Chief of Nyawita Sub-Location was irregular
Petitioner failed to prove on a balance of probabilities that the 5th Respondent was not a resident; appointment complied with constitutional and statutory provisions
Order directing removal/termination of the 5th Respondent's appointment as Assistant Chief
Not entitled to reliefs as no violation proved
Order directing that the appointment process be commenced afresh
Not entitled to reliefs as no violation proved
Costs
No order as to costs
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.
A person who wishes the court to believe existence of specific facts must prove the alleged facts on a balance of probabilities.
He cannot be heard to shift the burden of proof on the Respondents.
The appointment satisfied the constitutional mandate of gradual gender balance in public service appointments. This qualifies as positive discrimination, otherwise referred to as affirmative action which is mandated by the Constitution of Kenya 2010.
The Petition is dismissed with no order as to costs.
Issues in the judgment
#Interview date stated as 30th September 2015 while the advertisement is dated 15th July 2017, an apparent internal date inconsistency
The 5th Respondent is referred to as both 5th and 4th Respondent in the judgment
Replying affidavit date given inconsistently as 17th January 2018 and 5th December 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elisha Mien Owalla v Attorney General Republic of Kenya & 4 Others [2018] KEELRC 68 (KLR)", Case Analysis (2018). Petition (Kisumu), 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/68/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.