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ELRCDismissednot_stated_in_judgment· [2019] KEELRC 987 (KLR)

Salesio Mutuma Thuranira v Stephen Kaberia Arimba & 3 others [2019] KEELRC 987 (KLR)

Employment and Labour Relations Court (court name not stated in the judgment text; inferred from petition subject matter)
30 July 2019
3,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A public interest challenge to the extended tenure of Meru County Assembly's Clerk failed because the petitioner couldn't prove the clerk lacked a degree.

What this practically means

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Executive summary

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The Petitioner, suing on his own behalf and in the interests of residents of Meru County, challenged the extension of the 2nd Respondent's tenure as Clerk of the County Assembly of Meru after he attained the mandatory retirement age of 60 years in 2016. The Petitioner alleged breaches of Articles 27 and 28 of the Constitution, the County Governments Act, the County Assembly Services Act and the Public Service (Values and Principles) Act, asserting the extensions were handpicked, not competitive or transparent, and that the 2nd Respondent lacked a recognised university degree required by Section 13 of the County Governments Act. He sought declarations that the extensions were null and void, a declaration that the 2nd Respondent was illegally in office, an order surcharging him to refund salaries and emoluments, and costs. The Respondents countered that the extensions were lawfully approved by the County Public Service Board and the County Assembly, that the County Assembly Services Act came into force in 2017 and could not apply retrospectively, that Section 80(2) of the Public Service Commission Act permitted extensions beyond retirement age, and that the Petition failed the Anarita Karimi Njeru threshold, was brought too late, and was malicious. The court noted the values of open, transparent and merit-based recruitment, observed that the 2nd Respondent's attainment of 60 years and the two extensions were undisputed, and that the deliberations of the 4th Respondent extending the tenure were not exhibited. It nonetheless held that there would be ground to challenge the continued holding of office, but the Petitioner failed to prove the alleged incompetence, namely the absence of a degree from a recognised institution. The Petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the 2nd Respondent was qualified to hold office as Clerk for want of a recognised university degree

Holding

The Petition failed on this head because the Petitioner did not discharge the burden of proving the absence of a degree.

Reasoning

The Petitioner asserted that the 2nd Respondent lacked a degree from a university recognised in Kenya as required by Section 13 of the County Governments Act. The court observed that the deliberations of the 4th Respondent extending the tenure were not exhibited, but found that the Petitioner produced no proof of the alleged incompetence. The Respondents maintained that qualification records were public documents accessible to the Petitioner, so the burden could not shift to them.

p. 4
02

Whether the mandatory retirement age of 60 could lawfully be extended

Holding

Although the court noted grounds existed to challenge continued occupation of the office, the Petition was nonetheless dismissed for failure of proof.

Reasoning

The court acknowledged it was not disputed that the 2nd Respondent had attained 60 years and had his tenure extended twice. It noted the deliberations of the 4th Respondent were not exhibited and that there would be ground to challenge the continued holding of office. However, since the Petitioner failed to prove the alleged lack of qualifications, the Petition as pleaded was not merited.

Legal principles established

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  • A party alleging a respondent's lack of qualifications bears the burden of proving that allegation; the court cannot find incompetence without proof.

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents
Jurisdiction invoked
Articles 27, 28 and 75(1) of the Constitution; Sections 7, 9, 12, 13 and 14 of the County Governments Act; Sections 18 and 30 of the County Assembly Services Act; Public Service (Values and Principles) Act

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, "Salesio Mutuma Thuranira v Stephen Kaberia Arimba & 3 others [2019] KEELRC 987 (KLR)", Case Analysis (2019). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/987/eng@2019-07-30

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