[2014] KEHC 5020 (KLR)
The court found that, according to Paragraph 11(2) of the Information and Communication Technology Authority Order, 2013, the right of the Board to recommend a Chief Executive Officer to the Cabinet Secretary only arises after the term of the first Chief Executive Officer appointed by the Cabinet Secretary has...
Source-derived case information.
- Citation
- [2014] KEHC 5020 (KLR)
- Parties
- Applicant: Consumer Federation of Kenya (COFEK) suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng; Respondent: Cabinet Secretary, Ministry of Information, Communications and Technology; Respondent: Kenya Information Communication Technology Authority; Respondent: Attorney General; Respondent: Victor Kyalo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 144 of 2014
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DAS Majanja
- Legal Topics
- Public Appointments, Competitive Recruitment, Constitutional Values, Public Participation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Consumer Federation of Kenya (COFEK) suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng
Applicant
Cabinet Secretary, Ministry of Information, Communications and Technology
Respondent
Kenya Information Communication Technology Authority
Respondent
Attorney General
Respondent
Victor Kyalo
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the appointment of the 4th respondent as Chief Executive Officer of the Kenya Information Communication Technology Authority was done in accordance with the Constitution and the relevant statutory provisions.
- 2 Whether the Board was required to recommend a Chief Executive Officer to the Cabinet Secretary at the material time.
- 3 Whether the process of appointment required public participation and competitive recruitment at the current stage.
Ratio Decidendi
The court found that, according to Paragraph 11(2) of the Information and Communication Technology Authority Order, 2013, the right of the Board to recommend a Chief Executive Officer to the Cabinet Secretary only arises after the term of the first Chief Executive Officer appointed by the Cabinet Secretary has lapsed. At the material time, no substantive appointment had been made, and the 4th respondent was only acting in the position. The petitioner failed to provide evidence of a substantive appointment or any breach of the constitutional or statutory requirements. Therefore, there was no basis for granting the orders sought, as the legal framework had not been contravened and the...
Court Disposition
petition dismissed
Orders
- The orders sought in the petition are declined.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND JUDICIAL DIVISION
PETITION NO. 144 OF 2014
BETWEEN
CONSUMER FEDERATION OF KENYA (COFEK)Suing through its officials namelySTEPHEN MUTORO,
EPHRAIM KANAKE AND HENRY OCHIENG …………………..................................……...…..... PETITIONER
AND
CABINET SECRETARY, MINISTRY OF
INFORMATION, COMMUNICATIONS AND TECHNOLOGY ……….........…........……..… 1ST RESPONDENT
KENYA INFORMATION COMMUNICATION TECHNOLOGY AUTHORITY ....…………... 2ND RESPONDENT
ATTORNEY GENERAL …..……………............................................................................…. 3RD RESPONDENT
VICTOR KYALO …………..…….........................................................................……...…… 4TH RESPONDENT
JUDGMENT
1. The petition dated 31st March 2014 seeks to impugn the alleged appointment of the 4th respondent as the Chief Executive of the Board of the Kenya Information Communication and Technology Authority. It is grounded on the fact that the Board failed to recruit a Chief Executive Officer competitively and in accordance with the principles and values of the Constitution under Article 10 of the Constitution.
2. Under Paragraph 11(2) of the Information and Communication Technology Authority Order, 2013(‘the Order’), the Cabinet Secretary shall appoint the first Chief Executive Officer of the Authority upon commencement of the Order. Thereafter the Chief Executive shall be appointed on a competitive basis by the Cabinet Secretary upon recommendation by the Board. The Order came into force on 8th August 2013. The right of the Board to recommend a Chief Executive for appointment by the Cabinet Secretary only accrues after the term of the first Chief Executive appointed by the Cabinet Secretary has lapsed.
3. According to the material before the Court, the 4th respondent is holding the office of Chief Executive in an acting capacity as no recruitment has been done by the Cabinet Secretary as required under the Order. In my view, nothing would have been easier than for the petitioner to display the instrument of appointment. In any case, it is not doubted that such an appointment would, like other appointments to public office, be done on a competitive basis with public participation hence there is no need for an order to be made in that regard to the Cabinet Secretary or the Board to act in accordance with the Constitution and the law.
4. In light of Paragraph 11(2) of the Order, the right of the Board to recommend the Cabinet Secretary has not accrued and no Chief Executive has been appointed. In the circumstances, I decline to grant the orders sought in the petition.
DATED and DELIVERED at NAIROBI this 30th May 2014.
D.S. MAJANJA
JUDGE
Mr Kurauka instructed by Kurauka and Company Advocates for the petitioner.
Mr Mohammed, Litigation Counsel, instructed by the State Law Office for the 1st and 3rd respondent.
Mr Odhiambo instructed by Kiptiness and Odhiambo Advocates for the 2nd and 4th respondent.