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ELRCDismissedPetition (Kisumu), 2017

Elisha Mien Owalla v Attorney General Republic of Kenya & 4 Others [2018] KEELRC 68 (KLR)

Employment and Labour Relations Court
20 December 2018
1,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, an unsuccessful candidate for the position of Assistant Chief II of Nyawita Sub-Location, Kondele Location in Winam Division of Kisumu East Sub-County, petitioned for a declaration that the appointment process was irregular, an order terminating the 5th Respondent Judith Auma Obure's appointment, and an order directing that the appointment process commence afresh. He alleged that the 5th Respondent did not meet the advertised criteria, principally that she was not a resident of Nyawita Sub-Location and did not command respect from residents. The Respondents, through a replying affidavit by the sub-county Human Resource Management Officer, explained the competitive process: seven candidates were shortlisted, interviewed on 30th September 2015 by a panel whose members independently scored candidates, and the top three forwarded for appointment. Judith Auma Obure ranked third overall and was appointed by letter dated 19th January 2016. The Respondents contended she rented and resided in Nyawita, a cosmopolitan urban area, that no public objections were raised to the shortlist, and that her appointment advanced gender balance under Articles 27(8) and 81(b) of the Constitution, since both chiefs and five of seven assistant chiefs in Kisumu Central Sub-County were male. The court framed two issues: whether the petitioner proved any violation of his rights, and whether he was entitled to the reliefs sought. Applying the balance of probabilities standard, the court found the residency allegation merely speculative and rebutted by affidavit evidence, and that the petitioner could not shift the burden of proof. The court held that appointing the third-ranked female candidate constituted constitutionally mandated affirmative action. The petition was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Has the Petitioner proved any violation of his rights by the Respondents as alleged or at all?
  2. 2.Is the Petitioner entitled to the reliefs sought?

Key legal issues

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01

Whether the appointment of the 5th Respondent as Assistant Chief violated constitutional or statutory requirements, including residency

Holding

No violation; the petitioner failed to discharge the burden of proving she was not a resident, and the appointment complied with gender-balance requirements

Reasoning

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).

p. 3
02

Whether the petitioner was entitled to the reliefs sought

Holding

Not entitled; petition dismissed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed with no order as to costs.

The bench

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

majority

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

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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

p. 3

Order directing removal/termination of the 5th Respondent's appointment as Assistant Chief

Not entitled to reliefs as no violation proved

p. 3

Order directing that the appointment process be commenced afresh

Not entitled to reliefs as no violation proved

p. 3

Costs

No order as to costs

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.

A person who wishes the court to believe existence of specific facts must prove the alleged facts on a balance of probabilities.
p. 2burden of proof in constitutional petitions
He cannot be heard to shift the burden of proof on the Respondents.
p. 2petitioner cannot shift burden of proof
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.
p. 3affirmative action in public appointments
The Petition is dismissed with no order as to costs.
p. 3final orders

Issues in the judgment

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minor

Interview date stated as 30th September 2015 while the advertisement is dated 15th July 2017, an apparent internal date inconsistency

minor

The 5th Respondent is referred to as both 5th and 4th Respondent in the judgment

minor

Replying affidavit date given inconsistently as 17th January 2018 and 5th December 2017

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, "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.