Sheria Mtaani Na Shadrack Wambui v Public Service Commission & 2 others [2021] KEELRC 43 (KLR)
The bottom line
#Kenya's High Court dismissed a challenge to the Treasury's hiring of 350 accountants, finding the recruitment process lawful under the Public Service Commission Act.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - whether the petition should have been brought by ordinary suit rather than constitutional petition
The Court has jurisdiction; the authorities relied on by the Respondents were distinguishable. Where the crux is that a public recruitment process violated constitutional provisions, the matter must be brought by constitutional petition.
The Respondents argued that employment disputes require an ordinary suit, citing New Clicks, Communications Commission and Sumayya Athmani Hassan on constitutional avoidance. The Court held that a contextual approach applies. The Petitioner, an NGO acting under Article 258 as a public interest litigant and not an employee, alleges constitutional violations by state organs in a public recruitment; such an issue is properly agitated by constitutional petition, and the ELRC is clothed with jurisdiction to determine constitutional issues arising from employment and labour relations.
Whether the petition met the precision threshold required of constitutional petitions
The petition met the required threshold; mathematical or scientific precision is not demanded.
Citing Trusted Society of Human Rights Alliance v Attorney General, the Court applied the substantive test: a petition must give the adversary sufficient notice of the violations alleged so they can prepare their case, but the test does not demand mathematical precision or talismanic formalism. From the petition and supporting affidavit, the constitutional provisions allegedly violated and the manner of breach were discernible without speculation.
Whether the recruitment of the 250 Accountants complied with the law
The recruitment of the 250 was lawful and constitutional; the advertisement complied with section 37(1) of the Public Service Commission Act.
The Respondents established, and the Petitioner did not challenge through further affidavit, that the vacancies were advertised in MyGov (22nd February 2021), the Daily Nation (24th February 2021) and the Commission's website, reaching a wide population of potential applicants as section 37(1) requires. The Court also held that section 37 does not govern post-advertisement processes like shortlisting, so there was no obligation to publish shortlisted names.
Whether the additional 100 appointments, made without a fresh advertisement, were lawful
The appointments of the additional 100 were lawful; section 33 of the Public Service Commission Act permitted the Commission to act at the request of the authorized officer without a fresh advertisement.
Section 33(1) gives the Commission unconstrained power to discharge its mandate under Article 234(2)(a), exercisable at the request of the authorized officer. The 100 were picked from the pool of interviewed candidates from the February 2021 advertisement. The Petitioner did not rebut this or show any applicant was denied a chance. Not advertising afresh accorded with Article 232 values of efficient and economic use of resources.
Whether irregularities in recruiting the additional 100 would vitiate the entire recruitment of 350
No - without proper pleadings segregating the 100, the Court cannot separate the tainted from the untainted; and having found no irregularity, the question did not arise.
The Court observed that with proper pleadings clearly segregating the 100 and a finding of fundamental irregularities, it could vitiate the recruitment of only the beneficiaries of the tainted process. Here the pleadings did not clearly discern whether the non-shortlisting/non-interview allegations targeted the 100, the 250, or all 350, so no favourable finding could be made on that allegation.
Whether the 350 recruited Accountants ought to have been enjoined as parties
The Court found it improper to conclude proceedings that would terminate the employment of the 350 without involving them, and in any event dismissed the petition.
The Respondents asserted that the accountants had been deployed and were working in various stations, and that allowing the petition would entail termination of their employment with monumentally prejudicial effect. In proceedings with such an effect on a person, it would not be proper for them to be proceeded with and concluded without involving that person or persons.
Legal principles established
#- Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the Constitution without challenging the adequacy of that legislation (constitutional avoidance) - but a contextual approach is required, and where the crux of a petition is the violation of constitutional provisions in a public recruitment process, the issue can only be agitated through a constitutional petition and not an ordinary suit
- A petition alleging violation of the Constitution need not meet mathematical precision; the test is substantive - whether the petition gives the Respondents notice of the nature of the claims so they can adequately prepare their case
- Section 37 of the Public Service Commission Act governs advertisement of vacancies only and does not extend to post-advertisement processes such as shortlisting; nothing in it required publication of names of shortlisted candidates
- A party cannot rely on a matter not clearly pleaded; a court cannot found a favourable verdict on an unpleaded allegation without condemning the adversary unheard
- Where a tainted segment of a recruitment is not clearly segregated in the pleadings, a court cannot vitiate an entire recruitment; with proper pleadings the court could separate the tainted from the untainted beneficiaries
- Where a statute donates powers to an authority, the authority must exercise those powers within the four corners of the statute
Court orders
#- 1.The petition lacking in merit is dismissed with no order as to costs
- Jurisdiction invoked
- Article 258 of the Constitution (public interest enforcement proceedings), the ELRC being clothed with jurisdiction to hear and determine constitutional issues arising from employment and labour relations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheria Mtaani Na Shadrack Wambui v Public Service Commission & 2 others [2021] KEELRC 43 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/43/eng@2021-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.