Okello & another v Cabinet Secretary for Industrialization, Trade and Enterprise Development & another; Ngutari & 7 others (Interested Parties) (Petition 100 & 99 of 2020 (Consolidated)) [2020] KEELRC 289 (KLR)
The bottom line
#Kenya's High Court quashed the Cabinet Secretary's appointment of Business Premises Rent Tribunal members, ruling such appointments belong to the Judicial Service Commission.
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 chairperson and members of the Business Premises Rent Tribunal are judicial officers
- 2.Whether the appointment of the 1st to 5th Interested Parties was ultra vires
- 3.Whether the appointment of the 1st to 5th Interested Parties was unconstitutional
- 4.Whether the appointment of the 1st to 5th Interested Parties violated Article 27 of the Constitution
- 5.Whether Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is unconstitutional
- 6.Whether the Petitioners are entitled to the reliefs sought
Key legal issues
#Status of Business Premises Rent Tribunal members
The chairperson and members of the BPRT are judicial officers
Article 169(1)(d) classifies any court or local tribunal established by an Act of Parliament as a subordinate court. The constitutional definition of judicial officer in Article 260 covers the presiding officer of a court under Article 169(1)(d), and Section 2 of the Judicial Service Act extends this to local tribunals. Since the contemplated legislation under Article 169(2) has never been enacted, the Constitution and the Judicial Service Act govern appointments to such tribunals.
Ultra vires appointment by the Cabinet Secretary
The appointment of the 1st to 5th Interested Parties by the Cabinet Secretary was ultra vires
Having found the appointees to be judicial officers, the power to appoint them vests in the JSC under Article 172(1)(c) and Section 32 of the Judicial Service Act. The Cabinet Secretary's reliance on Section 11 of the Landlord and Tenant Act, a pre-2010 statute, could not override the constitutional scheme, particularly given Section 7 of the Sixth Schedule.
Compliance with Articles 10, 47 and 232 and Section 10 of the Public Service (Values and Principles) Act
The appointments were unconstitutional for lack of fair competition, merit, transparency and public participation
The appointments were made by calling for CVs from selected individuals without advertisement, public announcement of the vacancy, shortlisting or interviews. The court held that applications cannot be made in abstract; there must be announcement of a vacancy, statement of minimum qualifications, shortlisting and interviews, and vetting for Chapter Six values.
Constitutionality of Section 11 of the Landlord and Tenant Act
Section 11 is not unconstitutional per se; the defect lies in its application
Section 7 of the Sixth Schedule requires pre-existing law to be construed with alterations and adaptations necessary to conform to the Constitution, and where there is conflict the Constitution prevails. The court therefore declined to strike down the provision, holding that the Constitution provides the cure for non-conformity.
Violation of the two-thirds gender rule under Article 27(8)
Appointing only one woman out of five appointees breached Article 27 and Article 232(1)(i)
The court held that the gender principle for appointive positions is immediately realisable, not progressive. Ten years after promulgation there was no lack of qualified women; the Respondents gave no valid reason for the failure and could simply have advertised publicly for qualified applicants.
Number of Tribunal members and discretion of appointing authority
Section 11(1) does not prescribe minimum or maximum membership, so the appointing authority has discretion on numbers
The Regulations contemplate a Tribunal of more than one person, and Section 11(1) refers to 'a person or persons'. The court agreed with the Respondents and Interested Parties that the number of members is a matter of discretion for the appointing authority.
Legal principles established
#- Local tribunals established under Article 169(1)(d) are subordinate courts and their presiding officers are judicial officers whose appointment falls to the Judicial Service Commission under Article 172(1)(c) read with Section 32 of the Judicial Service Act
- Appointments to public office must be through an open, merit-based, inclusive and competitive process; contravention of the Constitution cannot be justified on public interest grounds
- The two-thirds gender principle in Article 27(8) applies immediately to appointive positions and is not progressively realisable
- Pre-2010 legislation assigning appointments to a State organ inconsistent with the Constitution is not per se unconstitutional but must be construed with alterations, adaptations and exceptions under Section 7 of the Sixth Schedule
Court orders
#- 1.A declaration that the appointment of the 1st to 5th Interested Parties is in violation of Articles 2, 10, 27, 47, 169(1)(d), 172(1), 232(1)(f) & (g) and 259 of the Constitution of Kenya, Article 2 of CEDAW, Article 2 of Maputo Protocol, Section 32 of the Judicial Service Act together with Section 10 of the Public Service (Values and Principles) Act
- 2.An order of Certiorari quashing Gazette Notice No. 4244 dated 22nd June, 2020 issued by the Cabinet Secretary for Industrialization Trade and Enterprise Development and any consequential actions arising therefrom
- 3.Each party to bear their own costs in both petitions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1) and (2) and 258(1) and (2) of the Constitution of Kenya, 2010 (public interest enforcement of the Bill of Rights)
- Consolidated with
- Petition No. 100 of 2020
Relief refused
#Prayer for Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act to be declared unconstitutional (Petition 100 of 2020)
The Act predates the Constitution and Section 7 of the Sixth Schedule requires it to be construed with alterations to conform with the Constitution; the defect lies in application, not the legislation
Order of mandamus compelling the Respondents to undertake a fresh lawful appointment process with public participation (Petition 99 of 2020)
No mandamus appears in the final orders made by the court
Costs of the petitions payable by the Respondents
The court directed that each party bear their own costs
Costs
Each party to bear their own costs in both petitions
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.
My finding in respect of this issue is thus that the chairperson and members of the Business Premises Rent Tribunal are judicial officers.
For these reasons the appointment of the 1st to 5th Interested Parties is ultra vires.
Those appointed to the Business Premises Rent Tribunal did not apply, were not shortlisted, and were never interviewed for the positions.
I thus do not find the Act unconstitutional.
A declaration be and is hereby issued that the appointment of the 1st to 5th Interested Parties is in violation of Articles 2, 10, 27, 47, 169(1)(d), 172(1), 232(1)(f) & (g) and 259 of the Constitution of Kenya, Article 2 of CEDAW, Article 2 of Maputo Protocol, Section 32 of the Judicial Service Act together with Section 10 of the Public Service (Values and Principles) Act.
An order of Certiorari be and is hereby issued quashing Gazette Notice No. 4244 dated 22nd June, 2020 issued by the Cabinet Secretary for Industrialization Trade and Enterprise Development and any consequential actions arising therefrom.
Each party to bear their own costs in both petitions
Issues in the judgment
#The judgment refers inconsistently to the governing statute, at times 'Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301' and at other times 'Landlord and Tenant (Shops, Hotels and Business Establishments) Act' or 'Business Premises Rent Tribunal Act'
Petition 100 of 2020 pleads reliance on 'Section 5 of the Administrative Action Act, No. 4 of 2010' but elsewhere the Fair Administrative Actions Act, No. 4 of 2015 is cited
Petitioner's prayer in Petition 100 refers to 'Section U of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act', apparently a typographical error for Section 11
Article 10 of the Constitution is described as 'national values and principles of ignorance' in an apparent typographical error
The court declined to make the order of mandamus sought in Petition 99 without expressly stating reasons for omitting it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello & another v Cabinet Secretary for Industrialization, Trade and Enterprise Development & another; Ngutari & 7 others (Interested Parties) (Petition 100 & 99 of 2020 (Consolidated)) [2020] KEELRC 289 (KLR)", Case Analysis (2020). Petition No. 99 of 2020 consolidated with Petition No. 100 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/289/eng@2020-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.