https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12208

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 343 OF 2024** **BETWEEN** **FRANCIS AWINO……………………………….............................PETITIONER** **VERSUS** **FRANCIS KIRAGU ……………………………………………….RESPONDENT** **AND** **KENYA EXPORT PROMOTION AND** **BRANDING AGENCY (KEPROBA)………………….....INTERESTED PARTY** **JUDGMENT** 1. The petitioner moved this court through petition dated 15th July 2024 and supported by his affidavit of even date. The petition seeks the barring of the respondent from occupying office any further at the interested party. The reasons advanced are that the petitioner has noted overwhelming illegalities, irregularities and circumvention of the law committed by the respondent at the interested party. 2. The petitioner states that the respondent has severally been put on the spot over several accounting malpractices touching on both his qualification credentials and ethics that are expected of him as an Accountant. It is contended that the respondent has worked for the interested party for over twenty-five years but lacks the required credentials for his role as Senior Officer Finance. That while he claims to be a member of ICPAK, he lacks any finance qualifications and has never taken any KASNEB exams. He only holds a certificate in telephone operations. 3. It is further claimed that the respondent in his capacity as a senior accounting officer has colluded with the CEO, Ms. Floice Mukabana by aiding her receive kickbacks to the detriment of the interested party and taxpayers’ money. He also abuses the petty cash for their selfish gain. It is contended that by neglecting to respond to queries on the impugned recruitment by well-meaning citizens such as the petitioner and the residents of Elgeyo Marakwet the respondent violated article 232 (e) and (f) the Constitution. 4. That by treating advice of the public as mere recommendations which are not binding on him, the respondent violated article 230 of the Constitution. The respondent has also disregarded the whole of chapter 6 of the Constitution which requires persons both state and public officers to uphold integrity. The petitioner contends that the respondent being a public servant may be removed from office for, among others transgressions, gross violations of the Constitution or any other law; commission of a crime; abuse of office; gross misconduct and violation of the Constitution or any other law like in the instant case. 5. The petitioner seeks the following relief: - 6. **An order of declaration declaring that the respondent’s actions are in violation of the Constitution and other legislation.** 7. **An order of mandamus directed to the appointing authority to declare the position of the Senior Finance Officer of Kenya Export Promotion and Branding Agency (KEPROBA), vacant and to conduct fresh interviews and appointment of a Senior Finance Officer.** 8. **An order of mandamus compelling the interested party to criminally investigate and, if culpable, instruct the Director of Public Prosecutions (D.P.P), to criminally prosecute the respondent for his flagrant breach of the law.** 9. **An order of declaration be issued that the respondent is unfit to hold any other public office because he has grossly violated the Constitution and other laws, and is guilty of gross misconduct.** 10. **That the Honourable Court be pleased to issue and hereby issues a permanent order of prohibition prohibiting the respondent from holding his office any further.** **SUMMARY OF THE RESPONDENT AND INTERESTED PARTY’S RESPONSE** 1. The respondent and interested party opposed the petition through grounds of opposition dated 11th October 2024 and replying affidavit sworn by respondent on even date. 2. It is contended that the petition does not meet the test of a constitutional petition set out in **Anarita Karimi Njeru v Republic [1979] eKLR and emphasized in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR**. Further that any information or evidence regarding kickbacks, or bribes, should be submitted to the relevant authorities to conduct investigations. 3. The interested party asserts that; it does not have any powers to investigate or direct the DPP to charge anyone, that the petitioner has not provided evidence of probative value to support the orders sought in the petition and there are specialised bodies to undertake issues such as those on corruption. 4. It is urged that the petition as drawn, lacks precision and clarity and the petitioner has contradicted himself by admitting that the respondent was recruited competitively and affirming that he does not lack qualifications to hold his substantive post at the interested party. It is also urged that the petition be dismissed with costs. 5. The respondent states that he has been a civil servant since the year 1991 when he joined the Ministry of Finance for three (3) years as a telephone operator, where he was seconded to Export Promotion Council in 1994. In 2004 he was deployed to the Administration department and then to the Finance department. 6. The respondent states due to technological advancement and the use of new software being adopted by the government, he developed a keen interest in the Microsoft Navision Office Dynamic then a novel software which was to be used within the Finance and accounting department at Export Promotion Council. He underwent rigorous three-month training on Microsoft Dynamics-NAV Financial Reporting and Systems Administration Management and was awarded a certificate. 7. In 2019, through legal notice No. 110 of 2019, Export Promotion Council and Brand Kenya Board were merged to form Kenya Export Promotion and Branding Agency (Agency). Pursuant to the said merger, he was appointed to the current substantive post of Senior Finance Officer. The same was predicated on the Circular Ref PSC/ADM/13/ (6) dated 11th March 2020 from the Public Service Commission. 8. The respondent refutes that his duties include signing any financial reports that would require him to have Certified Public Accountants qualification and purporting to be a member of ICPAK. He states that in his time at the Agency, he has been recognized severally as the employee of the year. He therefore contends that the petition is an abuse of the court process and the petitioner merely cites the provisions of the Constitution without substantiating them. 9. It is contended that the petitioner has not adduced any evidence in support of the allegations particularly on violation of ethics, bribery and/or receiving kickbacks and also on the abuse of petty cash for selfish gain. He states that he has never been the subject of any investigation concerning the said allegations of accounting malpractices or charged in court in connection with them. 10. The respondent asserts that, in compliance with section 26 of the Public Officers Ethics Act 2003, he has dutifully filed his wealth declaration as required by law. In addition, he has never received any queries from the Residents of Elgeyo Marakwet on any recruitment issue or any advise which he treated as mere recommendations. 11. The respondent pleads that he has complied with Chapter 6 of the Constitution and that he is fully committed to Integrity in the performance of his assigned duties, the Public Service code of conduct and has not in any way abused his office. He further pleads that the Interested Party’s functions Pursuant to Paragraph 4 of legal Notice 110 of 2019 do not contain the power to criminally investigate and/or instruct the DPP to criminally prosecute him. He urges for the dismissal of the petition with costs. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The petitioner cites article 10 and 232 of the Constitution and the decision in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** and **Trusted Society of Human Rights alliance v Attorney General & 2 others [2012] eKLR** for the contention that the respondent’s own evidence raises legitimate constitutional concerns regarding propriety of his appointment and continued occupation of office which this court cannot shut its eyes on. 2. The petitioner while citing articles 73 (2 (a) and (b) of the Constitution, section 22 of the Public Officer Ethics Act and the decision in **International Center for Policy and Conflict & 5 others v Attorney General & 4 others [2013] eKLR** contends that the respondent’s defence does not demonstrate possession of any professional accounting qualifications. He merely states that he underwent a three-month software training programme and thereafter continues serving within the finance department. A software training certificate cannot be equated to a professional accounting qualifications; public confidence in public finance management requires more than operational familiarity with software systems. 3. It is further urged any administrative action, appointment or promotion inconsistent with constitutional standards cannot be sanitized by a circular. The respondent has failed to satisfactorily demonstrate compliance with the constitutional standards contemplated under articles 10, 73 and 232. 4. Regarding whether he has discharged his burden of proof, it is contended that while allegations of corruption must ultimately be proved, constitutional litigation is not limited to criminal standards of proof. They frequently involve the examination of whether public power has been exercised within constitutional principles as envisaged in the **Mumo Matemu case.** The petitioner maintains that he has raised serious constitutional questions regarding qualifications, suitability and competence which have been reinforced by admissions contained in the respondent’s affidavit. Those admissions are sufficient to trigger constitutional scrutiny by this court. 5. The petitioner relies on article 23 (3) of the Constitution and the decision in **Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR** and urges that the petition be allowed with costs. **SUMMARY OF THE RESPONDENT AND INTERESTED PARTY’S SUBMISSIONS** 1. It is submitted that therespondent was duly qualified to be appointed by the Interested Party as a Senior Officer, Finance. In his Affidavit dated 11th October 2024, he avers that he has been a civil servant for close to three (3) decades, and he has served the people of Kenya in various capacities, during which time, he has gained specialized knowledge and developed competencies which earned him the position of Senior Officer Finance. 2. It is maintained that pursuant to the PSC circular of 11th March 2020, the PSC suspended the requirement of a Master’s degree and Strategic Leadership Development Programmes for promotion to senior positions. Instead, promotions were to be based on requisite experience, individual performance and competencies, aligning with the PSC’s transformation agenda. 3. It is submitted that article 234 (2)(a)(ii) as read with (d) and (g) of the Constitution empower the PSC to appoint persons to hold or act in the public service and to confirm appointments; to monitor and evaluate the organization, administration and personnel service of the public service; as well as review and make recommendations to the National Government in respect of conditions of service, code of conduct and qualifications of officers in the Public Service. 4. Reliance was placed on the decision in **Anthony v Communications Authority of Kenya & 3 Others (Petition E161 of 2021) [2022] KEELRC 1117 (KLR),** where the Court affirmed PSC’s mandate in regulating public service under article 234(2) of the Constitution. The court further emphasized that article 232 requires appointments and promotions to be based on fair competition and merit and held that no law obliges an employer to confirm an officer in a vacant position merely because they have acted in that role for any period. 5. The respondent and interested party also cite Section 22(a) of the Public Officers Ethics Act (Cap 185b), which requires appointments based on integrity, competence and suitability. The respondent avers that during his time at the Agency, he has been recognized severally as the employee of the year for his outstanding performance and dedication to the ideals, ethics, goals and aspirations of the Agency. 6. Reliance is placed on the decision in **Leornard Otieno v Airtel Kenya Limited (2018) eKLR; Kenya Plantation and Agricultural Workers Union v James Finlay (k) Limited (2013) eKLR**; **Geoffrey Mworia v Water Resources Management Authority and 2 Others, 2015 eKLR** and **Gicheha v Nairobi Water and Sewerage Co. Ltd (Petition E083 of 2022) [2024]****KEELRC 1984 (KLR)** for the argument that courts should not interfere with internal HR functions unless the employer contravenes the law. It is added that the respondent undertook specialized training in Microsoft Navision Dynamics software, further strengthening his suitability for the finance role. 7. It is submitted that the allegations on bribery and kickbacks and abuse of petty cash are not substantiated. In any event it is maintained that the respondent has never been the subject of any investigation concerning the said allegations of accounting malpractices or charged in court in connection with them. Reliance is placed on the decisions in **Emfil Limited Vs Registrar of Titles Mombasa and 2 Others [2014] eKLR** and **Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR.** 8. Regarding whether the respondent should be barred from Public Office for Gross violation of the law, it is reiterated that the respondent complied with the dictates of in section 26 of the Public Officers Ethics Act 2003; he never received any queries from the Residents of Elgeyo Marakwet on any recruitment issue and that he did not receive any advice which he treated as mere recommendations, as alleged.To this extent, it is asserted that therespondent is fully committed to Integrity in the performance of his assigned duties, the Public Service Code of Conduct and has not in any way abused his office. 9. It is also maintained that the petition fails to meet the threshold in **Anarita Karimi Njeru v Republic (supra)**and **Mumo Matemu v Trusted Society of Human Rights Alliance (supra)** and that the mandate of the interested party under paragraph 4 of the Legal Notice No. 110 of 2019 does not include powers to investigate or direct the DPP to charge anyone. This is the mandate of the Inspector General of Police under article 245 of the Constitution and the DPP under article 157(6) of the Constitution. **ANALYSIS AND DETERMINATION** 1. Having considered the pleadings filed herein along with the rival submissions and the relevant law, the issues for determination are whether 1. The Petition as framed meets the precision test as established in **Anarita Karimi Njeru vs Republic (1979) KLR 154.** 2. Arising from (a) above whether the Petition is merited? 3. Order on costs. ***Whether the Petition as framed satisfies the precision test as established in the Anarita Karimi Njeru case*** 1. The precision test as established in the **Anarita Karimi case** is as follows: **“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”** 1. This test was affirmed by the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**as follows: **“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”** 1. The precision requirement serves two related purposes. First, it enables the respondent to know the case to be answered. Secondly, it assists the Court by clearly identifying the constitutional provisions alleged to have been violated, the manner of the alleged violation, and the issues requiring determination. The Court of Appeal in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR**, captured this succinctly thus: **“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:** **“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”** 1. In assessing this Petition against the well‑established precision requirement, it becomes immediately apparent that the pleadings fall short of the constitutional standard. The Petitioner invokes weighty provisions, Articles 232(e) and (f), Article 230, Chapter Six, and Section 22 of the Public Officer Ethics Act, yet does not articulate, with the requisite clarity, the specific acts, the manner of their occurrence, or the nexus between those acts and the alleged constitutional violations. Where, as here, the Petition is bereft of factual particularity, the Court is left with assertions that resemble conjecture rather than constitutional grievance. A Petition that fails to meet this foundational threshold cannot be salvaged; it must, and does, fail**.** 2. Accordingly, the Petition is dismissed in its entirety, as the matter was presented in the public interest there shall be no order as to costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH** **JULY 2026.** **P. M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Aysha for Respondent & Interested Party Francis Awino Petitioner