Bulimu v Kenya Civil Aviation Authority & 3 others (Constitutional Petition E331 of 2026) [2026] KEHC 7521 (KLR) (Constitutional and Human Rights) (3 June 2026) (Ruling)

Bulimu v Kenya Civil Aviation Authority & 3 others (Constitutional Petition E331 of 2026) [2026] KEHC 7521 (KLR) (Constitutional and Human Rights) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7521 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E331 of 2026 RE Aburili, J June 3, 2026 Between Humprey Bulimu Petitioner and Kenya Civil Aviation Authority 1st Respondent Cabinet Secretary For Roads And Transport 2nd Respondent The Honourable Attorney General 3rd Respondent Anne Too 4th Respondent Ruling 1.The petition dated 27th May 2026 seeks several orders/reliefs, and these are that: the resolution of the 1st respondent’s Board of Directors to advertise, commence and undertake the competitive recruitment process for the position of Director General of the 1st respondent was unlawful, unconstitutional, null and void for want of the mandatory quorum prescribed under section 17(2) of the Civil Aviation Act. 2.The petitioners further pray for a declaration that the continued participation and or holding of office by the 4th respondent as a member of the 1st Respondent’s Board of Directors after 20th April 2026, is unlawful, illegal and contrary to section 13(6) of the Civil Aviation Act. 3.The petitioners also pray for a permanent injunction restraining the 1st respondent and its Board of Directors from proceeding with concluding or making any appointment pursuant to the impugned recruitment process for the positon of Director General unless and until the board is lawfully constituted in compliance with the Civil Aviation Act, a permanent injunction restraining the Board of directors of the 1st respondent from conducting the business and affairs of the 1st respondent unless and until the board is lawfully constituted in compliance with the Civil Aviation Act, 4.A further prayer is for an order compelling the 2nd respondent to undertake and or ensure compliance with section13(6) of the Civil Aviation Act by filing the existing vacancies in the 1st respondent’s Board of directors through an open, transparent and competitive recruitment process in accordance with the Constitution and the law. 5.The petitioners also pray for an order directing that the future recruitment process for the positon of Director General of the 1st respondent be conducted strictly in accordance with the Constitution, the Civil Aviation Act, the Kenya civil Aviation Authority Human Resource Policies and Procedures Manual, and the Kenya Civil Aviation Authority Career Guidelines, 2025, costs of this petition together with interest and any other further relief that the Honourable court may deem just and fit to grant in the circumstances. 6.Simultaneous with the filing of the petition, the petitioners filed a notice of motion seeking for conservatory orders pending hearing and determination of the petition and the interim reliefs to be granted exparte in the first instance. The court declined to grant any exparte interim relief and it directed the petitioners to serve the respondents with the petition and the notice of motion for interpartes directions on 2/6/2026. It also declined to certify the notice of motion as urgent. 7.On 2/6/2026, parties had been served and the 1st respondent appeared through counsel, seeking time to file a response to the application. 8.The petitioners’ counsel urged the court to grant an interim relief owing to the urgency of the matter and arguing that should the 1st respondent not be restrained from continuing with recruitment of the Director General, they will continue with the process and conclude it. That the process is illegal and reversing it will mean a process of removal of an already recruited Director General. 9.That Kenya is a signatory to the international instruments in the aviation industry and that it cannot afford to conduct an illegal process of recruiting a Director General in such a manner, absent quorum of the recruiting Board, and with one member of the Board serving without legal authority as her term already expired on 20/4/2026 as she was only appointed to fill the vacancy of Dr. Annette Mbogo who resigned on 22/1/2025 and to serve that unexpired term only of 3 years from 19/4/2023, which appointment is impugned on account that there was no competitive recruitment of the said member of the Board of the 1st respondent as required by law. 10.It is contended that Section13(b) of the Civil Aviation Act provides for mandatory competitive recruitment of an independent member of the Board and that the said section provides that the person so appointed shall hold office until the expiration of the term of office of the member in whose place he or she was appointed. 11.according to the petitioners, the other 5 Board member’s terms expired on 20/4/2026 following their appointment through competitive recruitment on 19/4/2023 and that therefore they have no authority, at all to recruit the Director General, a process they have embarked on without the backing of the law. They assert that under Section 17(2) of the Civil Aviation Act, quorum of the Board is six members excluding the Director General hence, the Board as constituted has no quorum to transact any lawful business of the Civil Aviation Act. 12.Furthermore, it is pleaded that the advertisement for recruitment of the Director General requires the applicants to send their applications through the chairman’s email address thereby compromising the integrity of the process and in violation of Article 10 Principles and Values of good governance, transparency and accountability and also violates the Kenya Civil Aviation Authority Human Resource Manual, clause 3.2.1 which mandates recruitment of the Director General through an open competitive, fair and merit based process. 13.The petitioners aver that the previous recruitment was done independently and openly as applicants were required to submit their applications to the recruitment secretariat which contrasts with the current recruitment process. the petitioners also assert that the professional qualifications of the prospective Director General have been lowered in violation of the 1st respondent’s career guidelines at clause 2.2 © and Human Resource Manual Clause 3.5.1 on grading qualifications. 14.It is averred that the deadline for submission of applications lapsed on 18th May 2026 hence the Board is in the process of shortlisting and appointing the new Director General hence the urgency of this matter. 15.. Ms Mokeira counsel for the 1st and 4th respondent submitted that the orders sought are premature as there is an assumption on shortlisting. That the matter is in a wrong court as only Employment and Labour Relations Court is the competent court which can interrogate the issues which are before this court. She urged the court to strike out the application which is premature. 16.I have considered the application for interim relief pending substantive interpartes hearing of the notice of motion. without delving into the merits of the application and the petition, the question is whether this court should grant any interim relief. 17.This court is aware that the motion is yet to be responded to substantively by the respondents who will be at liberty to raise any objection including the issue of jurisdiction of this court to hear and determine the petition. 18.However, before those issues are substantively raised and argued, this court observes that the 1st respondent’s Board is yet to complete the recruitment of the Director General and it is arguable as to whether this court or the Employment and Labour Relations Court will be the court with jurisdiction to entertain the issues raised, prior to the appointment of the Director General. differently put, the question will be whether there is an employee/employer relationship where no such contract of employment exists between the parties. 19.Having stated as much and without delving into any merits of the substantive application for conservatory orders, I am persuaded that the application for conservatory orders is urgent and that there is necessity to grant interim relief to preserve the substratum of the application and the petition to avoid the application and the petition being rendered nugatory as the recruitment once concluded and an appointment of the Director General made, in the midst of alleged illegalities, though reversable if found to be in violation of the law, carries with it a heavy cost to the public coffer and reputational damage of a public entity in the aviation industry. 20.For the foregoing reasons, I hereby grant a temporary conservatory order staying the already commenced process of recruitment and or appointment of the Director General of the Kenya Civil Aviation Authority by the 1st Respondent’s Board until the application for conservatory orders is heard and determined. The hearing of the said application shall be fast tracked. 21.I so order. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JUNE 2026R.E ABURILIJUDGE