[2021] KEHC 6236 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

PETITION NO. E092 OF 2020

IN THE MATTER OF ARTICLES 22(l) & 258 OF THE CONSTITUTION AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 10, 27, 73 & 232 OF THE CONSTITUTION

AND

IN THE MATTER OF PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, NO. l A OF 2015

AND

IN THE MATTER OF THE LEADERSHIP & INTEGRITY ACT, NO. 19 OF 2012

AND

IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT, NO. 10 OF 2017

AND

IN THE MATTER OF MWONGOZO, THE CODE OF GOVERNANCE FOR STATE CORPORATIONS, 2015

JONATHAN MUIA....................................................................PETITIONER

VERSUS

BOARD OF DIRECTORS,

ANTI-COUNTERFEIT AUTHORITY......................................RESPONDENT

THE ETHICS AND

ANTI-CORRUPTION COMMISSION.................1ST INTERESTED PARTY

FRIDAH KABERIA................................................2ND INTERESTED PARTY

PUBLIC SERVICE COMMISSION.....................3RD INTERESTED PARTY

RULING

1. The Petitioner seeks for an order staying the decision of the Respondent to select and appoint the 2nd Interested Party as the Acting Executive Director of the Anti-Counterfeit Authority pending the hearing and determination of the Petition. It is supported by the Petitioner’s affidavit in support of the notice of motion application dated 3rd December 2020 and the grounds on the face of the motion. The Petitioner asserts that the Petition raises novel and fundamental issues related to appointments in the public service. He argues that the appointment of the 2nd Interested Party is subject to the requirements of Chapter Six of the Constitution.

2. The Petitioner sought in the main for the following orders

a. Spent

b. An interim order staying the decision of the Respondent to select and appoint the 2nd Interested Party, Fridah Kaberia, as the Ag. Executive Director of the Anti-Counterfeit Authority does issue, pending the hearing and determination of this Application inter partes.

c. An interim order staying the decision of the Respondent to select and appoint the 2nd Interested Party, Fridah Kaberia, as the Ag. Executive Director of the Anti-Counterfeit Authority does issue pending the hearing and determination of this Petition.

d. Costs be provided for.

3. The Respondent and the 2nd Interested Party are opposed to the Motion. The 2nd Interested Party and the Respondent are stated to have filed a Replying affidavit sworn by the 2nd Interested Party on 14th December 2020. However, in the CTS System and the Court file I could not trace a copy of the Replying Affidavit and as such the decision is rendered having no benefit of the response in the Replying Affidavit.

4. The Petitioner filed submissions and it would seem the Respondent and Interested Parties did not file any submission. The Petitioner isolated the issues he felt were necessary for determination. On the issue as to whether the Petition has an arguable case, the Petitioner submitted that the Petition raises novel and fundamental issues related to appointments in the public service and compliance of such appointments with Chapter Six of the Constitution. The Petitioner submitted that there are key issues for determination in the Petition herein as follows:-

i. What is the law on appointments to public office?

ii. Whether the appointment of the 2nd Interested Party was subject to the requirements of Chapter Six (Article 73) of the Constitution.

iii. The standard test for meeting the requirements of Chapter Six (Article 73) of the Constitution.

iv. Whether the 2nd Interested Party possesses the requisite knowledge and experience for the position of Executive Director of the Authority.

v. Whether the appointment of the 2nd Interested Party complied with the provisions of Articles 10, 27 & 232 of the Constitution.

vi. Whether the appointment of the 2nd Interested Party undermines the expeditious appointment or deployment of a competent person to the vacant position of Executive Director of the Authority.

vii. Whether bad faith is an issue.

It was submitted that the primary law on appointments to public office save for Constitutional offices is Section 34 of the Public Service Commission Act as read together with Section 2 of the Act. It was submitted that Section 2 of the Public Service Commission Act, No. 10 of 2017 defines appointment as follows:- "appointment" includes appointment, acting appointment, re-appointment, promotion and re-designation;"

The Petitioner urged the Court to give full and true meaning to the definition of "appointment" aforesaid to avoid the charade being peddled by the Respondent herein that the prescribed qualifications for a given position do not apply in case of acting appointments, that the prescribed qualifications including integrity clearance only apply when a position is being filled competitively. In a nutshell, it is irrelevant whether the appointment is acting or re­appointment or otherwise. The appointee must meet all the prescribed qualifications including Chapter 6 requirements of the Constitution. The Petitioner submitted that Section 34(1) of the Public Service Commission Act makes additional provision on acting appointments as follows. It provides that acting appointments shall be-

(a) made by the lawful appointing authority; and

(b) subject to the prescribed regulations and procedures which apply to appointments.

The Act further provides under 34(2) and (3) as follows:-

(2) A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office.

(3) An officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months.

(4) A public officer may be assigned to perform duties vested in another public officer during a temporary absence of the other public officer.

(5) An acting appointment under subsection (4) shall-

(a) be in favour of a public officer who is duly qualified and competent to perform the duty; and

(b) not undermine the expeditious appointment or deployment of a competent person to the public office concerned.

(6) The Commission shall, whenever it comes to its attention that an authorised officer has purportedly made an acting appointment or assignment, in contravention of the provisions of this section, take corrective action.

5. The Petitioner submits that the decision of the Respondent to appoint the 2nd Interested Party to her acting position is an appointment within the meaning of Section 34 of the Public Service Act and therefore must be subject to the strictures of the provisions of the law of appointment to public office. It was argued that the 2nd Interested Party lacks the qualifications necessary for the appointment aforesaid and that the Respondent thus breached the law in making the appointment. The Petitioner asserts that there are integrity issues surrounding the 2nd Interested Party which are subject of investigations by the 1st Interested Party. It was stated that since the 1st Interested Party has not controverted that there are investigations ongoing against the 2nd Interested Party then it should be taken as an uncontroverted fact that there are integrity issues which would bar the Respondent’s Ag. Executive Director exercising the powers of that office even in acting capacity. The Petitioner submits that based on the requirements of Article 73 of the Constitution, Mwongozo, the Public Service Act, the Codes of Conduct for Public Officers inter alia the Respondent is bound to take into account the requirements for appointment to public office before making such an appointment as the one subject of the Petition. The case of Republic v Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 Others [2019] eKLRwhere the Court held as follows:-

The Constitution provides under Chapter Six, for Leadership and Integrity of all public officers. The Chapter is predicated upon the assumption that State officers are the nerve centre of the Republic and carry the highest level of responsibility in the management of State affairs and, therefore, their conduct should be beyond reproach. This means that under the Constitution Kenyans decreed that those whose conduct does not bring honor, public confidence and integrity have no place in the management of public affairs. This is to ensure that those entrusted with the management of public affairs and resources are persons of good character, probity and uprightness.

6. The Petitioner submitted that neither the Respondent nor the 2nd Interested Party has even pretended to demonstrate any application to the 1st Interested Party for integrity clearance to meet the requirements of Chapter Six of the Constitution and added to the fact that the 1st Interested Party has not challenged the integrity issues surrounding the 2nd Interested Party, the Petitioner urged the Court to find that failure to seek said clearance makes the appointment unconstitutional and irregular and illegal and only liable to be quashed. The Petitioner urged the Court to find that the appointment of the 2nd Interested Party was subject to integrity clearance by the 1st Interested Party and that in the absence of that clearance, the 2nd Interested Party was unqualified and ineligible for such appointment.

7. Other decisions were cited in support of the Petitioner’s submissions but I do not think that a detailed analysis of the cases will reveal any different approach or reasoning from those captured above. The arguments advanced are similar for the areas of attack the Petitioner identified as being critical in demonstrating the need of conservatory orders in respect to the 2nd Interested Party’s appointment as acting Executive Director. The basis for the requirements under Chapter Six of the Constitution of Kenya helps in determining the suitability of an individual to public office through various background checks to verify whether the applicant to public office meets the moral and ethical requirements to serve as such public officer and to confirm that the applicant is a person of integrity. This was put into the Constitution by the framers to ensure that the hitherto disregard for probity in applicants for public office comes to an end. What is the philosophy therefore in requiring an appointee in acting capacity to be cleared? In my mind, the same probity is required. However, the reasoning is flawed where the appointee is already a public officer within the public body that is subject of the appointment into acting capacity. If that line of reasoning as proposed by the Petitioner herein, there would scarce be any time to do anything other than to clear officers whenever they need to act for their seniors. It is improbable that the framers of the Constitution required or expected that every instance of appointment as in this case would entail getting clearances from the bodies under Chapter Six. In this matter, only the issue of a clearance from the Ethics and Anti-Corruption Commission (EACC) is deemed to be required. This ought not be the only clearance if the Petitioners were to seek enforcement of Chapter Six in the manner they propose. The Acting Executive Director of the Respondent has served the Respondent in a capacity that was substantial before the appointment to act for 6 months as the Executive Director. In order for her to have served in her substantive role, she must have been cleared by EACC and other Chapter Six institutions to allow her to sit in the Respondent as an officer. In the case before me, no indication has been given that prior to her initial appointment she was not cleared as required under Chapter Six. No evidence has been tendered that the 1st Interested Party did not clear the 2nd Interested Party when she sought appointment in the Respondent at the first instance when she became its employee. If the appointment was not preceded by clearance, then she would not be qualified to act as the Executive Director for six months as specified in the Respondent’s policies and procedures manual. I therefore find no merit to the challenge mounted against her acting without an additional clearance as sought in the motion. As such the motion is completely devoid of merit and is only fit for dismissal with costs to the Respondent as well as the 1st and 2nd Interested Parties to the exclusion of the 3rd Interested Party who did not participate at all in these proceedings.

8. The final orders are, the Notice of Motion application by the Petitioner/Applicant is dismissed with costs to the Respondent, 1st and 2nd Interested Parties.

It is so ordered.

Dated and delivered at Nairobi this 26th day of January 2021

Nzioki wa Makau

JUDGE