Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedPetition (combined Petition and Application) - not stated in full in the judgment· [2021] KEELRC 1118 (KLR)

Ali Jarso Wako & another v Principal Secretary Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2021] KEELRC 1118 (KLR)

Employment and Labour Relations Court (Nyeri)
26 July 2021
3,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a chief's appointment because the government skipped public participation and ignored the top-ranked candidate.

What this practically means

#

Executive summary

#
This was a combined petition and application filed by two petitioners challenging the recruitment and impending appointment of the 5th Respondent as Chief, Heilu Location, following an interview conducted after an advertisement of 5th December 2019 by the Deputy County Commissioner, Moyale Sub-County. The petitioners, members of the Borana community, claimed that the 1st Petitioner emerged top of five interviewed candidates but was passed over in favour of the second-ranked candidate, the 5th Respondent, allegedly due to political interference by the Moyale Member of Parliament; they alleged non-qualification, lack of local residence and community connection, ethnic marginalisation of the Borana in the distribution of chieftaincies in Heilu-Manyatta Ward, and violations of Articles 19, 27 and 47 read with the Fair Administrative Action Act. The 5th Respondent and the interested parties (Gabra community leaders) denied the claims, contending non-disclosure of material facts - including that the Assistant Chief post in the same location had gone to a Borana candidate and that Heilu had never had a non-Borana chief since independence - and invoked Anarita Karimi Njeru v Republic on lack of particulars. The court framed three issues: violation of rights, entitlement to relief, and costs. Holding that the matter fell to be decided on a balance of probabilities, the court found the Respondents failed to demonstrate compliance with the law and constitution in appointing the second-ranked candidate in a volatile area, that public participation was key and omitted, and that the Anarita Karimi Njeru objection failed since no set format for pleading constitutional breach exists. The court declared the recruitment illegal, procedurally unfair and unconstitutional, ordered the exercise repeated with stakeholder involvement and effective public participation, and awarded costs to the Petitioners against the Respondents.

Key legal issues

#
01

Whether the recruitment and appointment of the 5th Respondent as Chief, Heilu Location violated the Petitioners' constitutional rights

Holding

Yes - the recruitment was illegal, procedurally unfair and unconstitutional.

Reasoning

The court found a delicate and volatile situation requiring extremely cautious handling. The appointment of the second-ranked candidate was done without public participation and without considering the views and feelings of all interested parties, in breach of Article 47 and the Fair Administrative Action Act. The Respondents failed to adduce evidence to counter allegations of non-qualification, domicile and lack of community involvement of the appointee.

p. 5
02

Whether the petition failed for lack of particulars under Anarita Karimi Njeru v Republic

Holding

No - the petitioners had sufficiently spelt out their case.

Reasoning

The defence that the petition did not particularise the violations under Anarita Karimi Njeru failed because the petitioners had elucidated and spelt out their case in the petition. The court held that no set format for pleading constitutional breach is required, and imposing one would curtail the enjoyment of fundamental rights and freedoms.

p. 5
03

Burden and standard of proof on the allegations of violation

Holding

The applicable test was the balance of probabilities, and the court tilted it in favour of the Petitioners because the Respondents failed to demonstrate compliance.

Reasoning

The matter was one of word against word. On questions of qualifications and conduct of interviews, the Respondents were better placed to display evidence of the interview process and results but did not, despite knowledge of the volatile situation on the ground and the implications of appointing the second-position candidate.

p. 5
04

Whether the appointment discriminated against the Borana community contrary to Article 27

Holding

The court accepted the petitioners' case that the selection marginalised the Borana community and undermined ethnic balance, peace building and reconciliation in the Ward.

Reasoning

The court found that public participation was key and that the feelings of all interested parties should have been sought and considered. The ethnic balance in local leadership of Heilu-Manyatta Ward, a conflict hotspot, was a relevant consideration, and the respondents' failure to address this rendered the process unfair.

p. 5

Legal principles established

#
  • There is no set format for pleading a case of constitutional breach; the Anarita Karimi Njeru particularisation requirement is satisfied where the petitioner has elucidated the case in the petition.
  • In claims of constitutional violation on a balance of probabilities, the administrative body conducting a recruitment must demonstrate compliance with the law and constitution.
  • Public participation and consideration of all stakeholders is critical in sensitive public recruitment exercises in volatile areas.

Court orders

#
  1. 1.A Declaration be and is hereby issued that the recruitment of the 5th Respondent as chief, Heilu location is illegal, procedurally unfair and unconstitutional.
  2. 2.That it in the interest of good governance and entrenchment of peace, the recruitment exercise of chief, Heilu location be repeated with a view to taking into the account the law and constitution and particularly that on involvement of all stake holders and effective public participation by all.
  3. 3.That the costs of this petition shall be borne by the Respondents.
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of fundamental rights and freedoms (Articles 19, 27, 47) and review of administrative action (Fair Administrative Action Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ali Jarso Wako & another v Principal Secretary Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2021] KEELRC 1118 (KLR)", Case Analysis (2021). Petition (combined Petition and Application) - not stated in full in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1118/eng@2021-07-26

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