Moses Banda v Cabinet Secretary for the National Treasury and Planning; Kenya Post Office Savings Bank (Postbank) (Interested Party) [2020] KEELRC 450 (KLR)
The bottom line
#Kenya's Employment Court ruled the Treasury Cabinet Secretary could not lawfully revoke a state corporation board member's appointment without notice, reasons, and a hearing.
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 Petitioner is a public officer by virtue of his membership to the Board of Postbank (Interested Party)
- 2.Whether the Respondent has the statutory authority and power to revoke the appointment of the Petitioner as was done by Gazette Notice No. 10740, Vol. CXXI-No. 155
- 3.Whether the Respondent violated the Petitioner's fundamental rights and freedoms as protected under Articles 25, 27, 28, 33, 41, 47, 48, & 50 of the Constitution
- 4.Whether the Petitioner should be granted the reliefs and orders sought in his Petition
Key legal issues
#Status of the Petitioner as a public officer
The Petitioner is a public officer under Article 260 because he sits on the Board of a state corporation.
The court applied Article 260's definition of public officer and Article 232(2), which extends public service values to state corporations. It aligned itself with the Omtatah decision holding that board members of state corporations are public officers within public or state service, governed by constitutional and statutory provisions on public employment.
Respondent's statutory power to revoke
The Respondent lacked power to revoke; removal of board members is governed by sections 6(2) and 7(3) of the State Corporations Act, with revocation reserved to the President.
The court agreed with Ronoh Sitienei that section 7(3) of the State Corporations Act is the specific provision for revocation, revocable only by the President within statutory safeguards. The Kenya Post Office Savings Bank Act is silent on revocation, so sections 6(2) and 7(3) of the State Corporations Act apply. None of the section 6(2) grounds were established.
Violation of fair administrative action and due process
The revocation breached Article 47, Section 4 of the Fair Administrative Action Act and Article 236 - no notice, reasons or hearing were given.
The stated ground of protecting the bank's and public interest was unsupported by evidence. No grounds were given and the Petitioner was informed only after gazettement. Article 236 due process in removal of public officers was similarly not followed.
Alleged violations of Articles 25, 33, 41 and 50
Not proved; Article 41 inapplicable since the Petitioner is not an employee, and there was no trial for fair-trial rights.
The court found the Petition pleaded violations with reasonable precision, satisfying Anarita Karimi Njeru, but the evidence established only Article 47 and Article 236 violations. The discrimination claim under Article 27 was not expressly addressed in the court's findings on the pleaded rights.
Legal principles established
#- A member of the board of a state corporation is a public officer governed by constitutional and statutory provisions on public service
- Revocation of a board member's appointment of a state corporation is governed by section 7(3) of the State Corporations Act and may only be done by the President
- An appointing authority must give prior notice, reasons and an opportunity to respond before revoking an appointment; failure violates Article 47 and Section 4 of the Fair Administrative Action Act
Court orders
#- 1.A declaration that the 1st Respondent violated the petitioner's fundamental rights and freedoms under Articles 47 and 236 of the Constitution and Section 4 of the Fair Administrative Action Act
- 2.An order of certiorari quashing Gazette Notice No. 10740, Vol. CXXI-No. 155 of 12th November 2019 revoking the petitioner's appointment to the Board of the Interested Party with effect from 6th November 2019
- 3.A permanent injunction restraining the Respondent from appointing any other person to replace the petitioner unless his term expires or he is removed in accordance with the law
- 4.General damages of Kshs.300,000.00 payable by the Respondent to the Petitioner
- 5.Respondent to pay the Petitioner's costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 23(1) and (3) of the Constitution - enforcement of Bill of Rights under Article 22
Relief refused
#Declarations of violation of Articles 25, 27, 28, 33, 41 and 50
No proof of breach; Article 41 inapplicable as Petitioner not an employee; no trial occurred to found fair-trial/presumption-of-innocence claims
Punitive damages
Conditions for award not proved
Costs
The Respondent shall pay the Petitioner's costs of this suit.
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.
1. A declaration be and is hereby issued that the 1 st Respondent has violated the petitioner’s fundamental rights and freedoms as protected under Articles 47 and 236 of the Constitution and Section 4 of the Fair Administrative Action Act.
2. An order of certiorari be and is hereby issued to quash the Gazette Notice No. 10740, Vol. CXXI-No. 155 issued on 12 th November 2019 by the respondent revoking the appointment of the petitioner as a member of the Board of the Interested Party with effect from 6th November 2019.
4. With respect to prayer B, the Petitioner is awarded general damages in the sum of Kshs.300,000.00 to paid by the respondent.
I however do not find any proof of breach of the petitioner’s fundamental rights and freedoms under Articles 25, 33, 41 and 50. Specifically, Article 41 is not applicable to the Petitioner as he is not an employee in the manner contemplated therein.
The Responded shall pay the Petitioner’s costs of this suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Banda v Cabinet Secretary for the National Treasury and Planning; Kenya Post Office Savings Bank (Postbank) (Interested Party) [2020] KEELRC 450 (KLR)", Case Analysis (2020). Petition dated 5th December 2019 (Nairobi, ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/450/eng@2020-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.