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)
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
#Key legal issues
#Whether the recruitment and appointment of the 5th Respondent as Chief, Heilu Location violated the Petitioners' constitutional rights
Yes - the recruitment was illegal, procedurally unfair and unconstitutional.
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.
Whether the petition failed for lack of particulars under Anarita Karimi Njeru v Republic
No - the petitioners had sufficiently spelt out their case.
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.
Burden and standard of proof on the allegations of violation
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.
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.
Whether the appointment discriminated against the Borana community contrary to Article 27
The court accepted the petitioners' case that the selection marginalised the Borana community and undermined ethnic balance, peace building and reconciliation in the Ward.
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.
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.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.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.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.