https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1534

Mutua & another v Ministry of Interior & Coordination of National Government & 9 others (Constitutional Petition E006 of 2025) [2026] KEELRC 1534 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1534 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Constitutional Petition E006 of 2025 JW Keli, J June 5, 2026 IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 2(1), 2(2), 2(4),3(1), 10(1) & (2)(C) 19,20(1)&(2), 22, 23,27(1) & (2), 41(1), 47, 73(2), 232, 233, 258 & 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE NATIONAL GOVERNMENT COORDINATION ACT CHAPTER 127 OF THE LAWS OF KENYA AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT CHAPTER 185 OF THE LAWS OF KENYA AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT AND IN THE MATTER OF THE PROCESS OF THE APPOINTMENT INTO OFFICE OF THE CHIEF MITABONI LOCATION WITHIN MACHAKOS COUNTY Between Stephen Nzomo Mutua 1st Petitioner Anthony ndonye Mutiso 2nd Petitioner and Ministry of Interior & Coordination of National Government 1st Respondent Public Service Commission 2nd Respondent County Commissioner, Machakos County 3rd Respondent Deputy County Commissioner, Kathiani Sub County 4th Respondent Lea Kalondu Ngutu 5th Respondent The Honourable Attorney General 6th Respondent and Francis Muindi Kimondiu 1st Interested Party Juliana Katumbi Kituku 2nd Interested Party David Musembi Ngunzu 3rd Interested Party Florence Mwikali Musyoka 4th Interested Party Judgment 1.The Petitioners, alleging to be taxpayers and residents within the Mitaboni location within Machakos County, challenged the recruitment of their Chief. They filed a Petition dated 15th July 2025 seeking the following orders:-a.A declaration be and is hereby issued under Articles 41, 47, 23, and 232 of the Constitution, together with Sections 4, 5, and 6 of the Fair Administrative Action Act No. 4 of 2015, that the Respondents are legally bound to consider the minimum qualifications as originally advertised, alongside competence, suitability, experience, merit, and ability as objectively assessed and recommended by the Selection Panel or any other lawfully constituted selection body, when approving and appointing any candidate to the position of Chief of Mitaboni Location.b.A declaration be and is hereby issued under Articles 41, 47, 23, and 232 of the Constitution, together with Sections 4, 5, and 6 of the Fair Administrative Action Act No. 4 of 2015, that the Respondents are legally bound to consider the minimum qualifications as contained in 2015 Revised Scheme of Service for National Government Administrative Officers, alongside competence, suitability, experience, merit, and ability as objectively assessed and recommended by the Selection Panel or any other lawfully constituted selection body, when approving and appointing any candidate to the position of Chief of Mitaboni Location.c.A declaration be and is hereby issued that the Respondents, in appointing the 5th Respondent as Chief of Mitaboni Location, failed to adhere to the originally advertised qualifications and the merit-based criteria assessed by the Selection Panel, thereby violating the constitutional and statutory principles governing public service appointments.d.A declaration be and is hereby issued that the Respondents, in appointing the 5th Respondent as Chief of Mitaboni Location, failed to adhere to the 2015 Revised Scheme of Service for National Government Administrative Officers.e.A declaration be and is hereby issued that the Respondents' failure to uphold the minimum qualifications in the 2015 Revised Scheme of Service for National Government Administrative Officers, as well as the standards of competence, suitability, experience, merit, and ability, amounts to conduct that is illegal, unconstitutional, and a violation of the right to fair administrative action and the doctrine of legitimate expectation.f.A declaration be and is hereby issued that the approval and appointment of the 5th Respondent to the position of Chief of Mitaboni Location, having been made in contravention of constitutional and statutory requirements, is null and void and stands set aside to pave the way for a lawful appointment grounded in fairness, transparency, and merit.g.A judicial review order of certiorari be and is hereby issued quashing the Respondents' decision appointing the 5th Respondent as Chief of Mitaboni Location, including any letters, notices or communications formalizing that appointment.h.A judicial review order of mandamus be and is hereby issued compelling the Respondents to promptly identify and appoint, from the existing pool of candidates, a deserving and meritorious applicant who attained the highest marks in the selection process, thereby bringing the matter to a just conclusion without imposing additional financial burdens on the public.i.In the alternative, a judicial review order of mandamus be and is hereby issued compelling the Respondents to forthwith undertake a fresh advertisement, shortlisting, and recruitment process for the position of Chief of Mitaboni Location, in full compliance with the law and the constitutional principles of transparency, fairness, and meritocracy, so as to ensure the appointment of a duly qualified and deserving candidate.j.That the costs of this Petition be awarded to the Petitioners.k.Any other order this Honourable Court deems fit and just to grant in the furtherance of justice. 2.The Petition was filed alongside the Supporting Affidavit of the 2nd Petitioner, sworn on 15th July 2025, with the Authority of the 1st Petitioner, and annexures thereto. 3.In response to the said Petition, the Respondents filed a Replying Affidavit sworn by David Rotich, on 8th September 2025. The 2nd Respondent separately filed a Replying Affidavit sworn by Paul Famba on 18th September 2025; and the 5th Respondent separately filed a Replying Affidavit sworn by her on 4th February 2026. The Petitioners’ case in summary 4.The Petitioners’ case relates to the position of Chief, Mitaboni Location, which required to be filled after becoming vacant upon the retirement of the previous office holder. In recognition of this vacancy, an advertisement was published inviting eligible and qualified candidates to submit their applications. The advertisement expressly set out the qualifications and criteria for the position. 5.It is averred that following the close of applications and an initial vetting process, the 5th Respondent together with the 1st to 4th Interested Parties were shortlisted as the successful applicants to proceed to the final round of interviews. The interviews were scheduled with each candidate duly notified and expected to prepare for a rigorous and transparent evaluation process. 6.Contrary to the principles of fairness, transparency, and meritocracy, the interview proceedings were not proper, and the panel, acting under the mandate of the 1st to 4th Respondents, ultimately selected the 5th Respondent for appointment as Chief of Mitaboni Location, despite the 5th Respondent emerging as the lowest ranking candidate, failing to meet the minimum qualifications having scored grade D- in her KCSE examinations, and failing to attain the minimum qualifications set out in the 2015 Revised Scheme of Service for National Government Administrative Officers. The Petitioners express that they are apprehensive that the 5th Respondent will begin undertaking the sensitive duties of Chief, namely, handling security briefings, presiding over local administrative disputes, and coordinating government functions, all while drawing salaries and benefits from public resources, on the strength of a process that is plainly tainted by irregularities. 7.It is stated that the Petitioners on 2nd July 2025 requested to be provided with the documents relating to the impugned appointment, but to no avail. 8.The Petitioners complain that the Respondents violated Article 10 of the Constitution, by disregarding the national values of integrity, transparency, and accountability, and orchestrating a process that betrayed public trust and mocked the promise of good governance. Further, they contravened Article by denying equally qualified candidates the benefit of the law by conferring unfair advantage on the 5th Respondent, thereby entrenching discrimination; Article 41, on the right to fair labour practices by presiding over a process that rewarded favoritism over merit; Article 47 and section 4(1) of the Fair Administrative Actions Act by carrying out an administrative process that was neither fair nor rational; Article 73(2) by wielding public power in a manner that eroded respect for leadership, tarnished the honour of public office, and invited public cynicism; Article 232 by bypassing the constitutional benchmarks of fair competition, professional ethics and merit-based appointments, settling instead for expedience that compromised the very essence of public service; and Article 233 by undermining the integrity of oversight mechanisms vested in the Public Service Commission. It is stated that the Respondents, in violation of Article 259(1), interpreted and applied the Constitution in a way that subverted the rule of law and dimmed the light of good governance. Other legal provisions that are argued to have been contravened by the actions of the Respondents are: Section 15 of the National Government Coordination Act in that the recruitment was conducted without the transparency, competitiveness or merit demanded by law; Sections 36, 37 and 38 of the Public Service Commission Act by permitting favoritism, secrecy, and lack of accountability to mar the recruitment process; Section 59( d) of the Public Service Commission Act by failing to uphold the constitutional values of Articles 10 and 232 in the recruitment process, thus betraying their duty to promote integrity and accountability in the public service; and Regulation 16 of the Public Service Regulations by ignoring the established standards and procedures for recruitment, thereby compromising the credibility of the process and inflicting needless distress on deserving candidates. Finally, it is the Petitioners complaint that the respondents ignored the minimum qualifications as provided for under the 2015 Revised Scheme of Service for National Government Administrative Officers. 9.The Petitioners aver that by issuing a public advertisement that expressly set out specific qualifications for the position, the Respondents created a legitimate expectation among qualified local residents that the selection process would faithfully adhere to these criteria. Their subsequent failure to appoint a qualified candidate, despite this clear commitment, shattered that expectation, undermining public confidence in the integrity of the process and administrative fairness. 10.It is stated that the appointment made by the Respondents has gravely undermined public trust by placing an unqualified individual in a sensitive administrative and security role through a process marred by irregularities. This erosion of confidence hampers effective delivery of government services and weakens the maintenance of law and order. The Respondents’ case in brief 1st , 3rd, 4th Respondents and Interested Party’s case 11.The 1st ,3rd and 4th Respondents' case is that the position of Chief, Mitaboni Location, became vacant after the then area Chief proceeded on terminal leave from 1st June 2022 vide letter Ref. ST.1/1/VOL II (114) dated 14th June 2022. Vide a letter dated 1st July 2022 Ref. ST/1/8 VOL.1(178) and letter dated 12th July 2022 Ref. Z. 132 VOL.1/51, authority was given to interview the assistant chiefs for the vacant posts of Kaewa location and Mitaboni location and the post was advertised vide letter dated 30th September 2022 Ref. ST.1/8/VOL.1/(189) calling for suitably candidates to tender the applications for the job and the 4th Respondent herein was among the applicants. 12.After shortlisting, interviews were held on 12th October 2022, with the 5th Respondent being one of the candidates who was shortlisted and participated in the interviews. The results of the interviews were forwarded to the Regional Co-ordinator vide a letter Ref. ADM/CF/15/3/VOL 1(105) dated 21st October 2022 with a recommendation that the 1st Interested Party was among the best three candidates who had qualified for the job. Due to a delay in finalizing the appointment exercise, an inquiry was sent from the offices of the 4th Respondent vide a letter dated 28th July 2023 Ref. DCC/ST/CF/1/8B/VOL 1 (23) and it was found that although the recruitment recommendations had been forwarded to the Regional Headquarters, the recommendations and remarks from the previous County Commissioner, Machakos had not been attached despite being forwarded to the County Commissioner on 28th July 2023. This was as a result of the failure of the County Commissioner, who was on transfer at the time to action the same, resulting in the exercise being carried out again vide letter dated 5th April 2024 Ref. CC/ST/CF/3/VOL.VI/48. 13.It is averred that in response to the County Commissioner's request to cancel the previous recruitment process due to the non-existence of the then County Commissioner's recommendations and remarks, the Regional Commissioner Eastern Region vide letter dated 2nd May 2024 Ref. Z. 132 VOL. 1/60 issued authority to re-advertise and fill the vacant posts of Chief Mitaboni alongside the positions of Assistant Chiefs Kaiani and Kithia sub-locations. 14.That upon receipt of the authority to re-advertise the positions the 4th Respondent herein advertised the positions vide a subsequent advertisement dated 25th July 2024 Ref. ST/1/8VOL.1(208) inviting all interested applicants to apply on or before 23rd September 2024. Candidates, including the 5th Respondent, were short listed on 10th September 2024 and participated in the interviews conducted on 3rd December 2024 where the top three candidates were identified and recommended. The results of the interviews were then forwarded to the Regional Co-ordinator vide a letter Ref. ADM/CF/15/3/VOL II (03) dated 16th December 2024 with a recommendation that the 5th Respondent was among the best three candidates who had qualified for the job. Through a letter Ref. Z.132 VOL. 1/68, the Regional Commissioner granted authority to appoint the 5th Respondent as the Chief, Mitaboni Location pursuant to the authorization letter Ref. MOINA/SEC.5/I/5 dated 28th March 2025 from the Principal Secretary. 15.The Respondents deny that they violated the Constitution of Kenya or any other law including the Scheme of Service for chiefs and Assistant Chiefs or at all in their appointment of the 5th Respondent as Chief Mitaboni Location. The Respondents rely on the National Government and Co-ordination Act 2010 which vests on the 1st and 2nd Respondent excusive mandate to appoint Chiefs and Assistant Chiefs; and state that the 1st Respondent delegated to the office of the 3rd Respondent powers to declare vacancies, advertise, shortlist and conduct interviews to fill the positions of Chiefs and Assistant Chiefs. Pursuant to the delegated functions, the 2nd Respondent authorized my office to advertise, shortlist and conduct interviews to fill the position of Chief Mitaboni Location. Thereafter the names of three (3) best candidates to the 1st Respondent through the Regional Co-ordinator for appointment as the law required. The Respondents confirm that the appointment process has yet to be concluded, hence the petition is premature. 16.The Respondents insist that the appointment of the 5th Respondent as Chief-Mitaboni Location was not only fair but effected through an open, transparent and competitive recruitment exercise within the letter and spirit of the Constitution of Kenya and other laws of Kenya; they followed proper procedures when the office of Chief of Mitaboni Location fell vacant in July, 2022, until when the vacancy was made public through an advertisement to fill the vacancy; and candidates were shortlisted based on their qualifications and required experience with only shortlisted candidates being contacted and subjected to a rigorous interview exercise, and names of the best three (3) candidates being forwarded for consideration and appointment. The 5th Respondent met all requirements for the appointment as Chief-Mitaboni Location, having scored 82.66% more than other candidates, hence becoming the best candidate for the job. 17.It is confirmed that some individuals staged a protest in Mitaboni area on 9th July 2025 after information was leaked to the general public about the 5th Respondent's appointment as Chief of Mitaboni Location. 18.It is the Respondents’ case that they upheld the national values and principles of governance set out under Article 10 of the Constitution of Kenya as well as the principles of public service set out under Article 232. They agree that for inclusivity and accountability in public service all appointments must meet the constitutional thresholds, to wit, be open, transparent and accountable and above all be procured through competitive recruitment exercise. Further, Article 27 prohibits discrimination based on any parameter, be it color, tribe, ethnicity or at all. They state that they complied with the afore-stated values. 19.They challenge the petition on the premise that it does not meet the tenets of a constitutional petition as no constitutional violation or threatened violation has been demonstrated by the petitioner. 2nd Respondent’s case(Public Service Commission ) 20.The 2nd Respondent avers that pursuant to Articles 233 (1) and 234 of the Constitution; Sections 31 and 33 of the Public Service Commission Act; and Regulation 5 of the Public Service Commission Regulations, the Public Service Commission delegated its function to the Authorized Officer at the Ministry of Interior and Co-ordination of National Government to exercise its mandate to appoint Chiefs and Assistant Chiefs. 21.It is admitted that on 25th July 2024 the Ministry of Interior and Coordination of National Government placed an advertisement for the position of Chief Mitaboni Location, Kathiani Sub-county. The requirements for appointment to the position of Chief at the time the recruitment was undertaken was as at Appendix B of the Revised Scheme of Service for National Government Administrative Officer, October 2015 namely:“(i)Have a Kenya Certificate of Secondary Education (KCSE) mean Grade C (Plain);(ii)A Diploma in any of the following disciplines: Public Administration Management, Social Work, Community Development, Education, Governance, Conflict Management or its equivalent qualification from a recognized institution;(iii)Be not less than thirty-five (35) years of age;(iv)Be a resident of a particular location;(v)A certificate of good conduct;(vi)Have good communication skills; and(vii)Have a certificate in computer application skills from a recognized institution.” 22.On 10th September 2024 the shortlisting panel resolved to shortlist applicants with mean grade of C (Plain) and age above 35 years. For serving officers any disciplinary letter would disqualify the officer. The records show that contrary to their earlier decision, the shortlisting panel proceeded to shortlist persons who did not meet the minimum qualifications in Appendix B of the Revised Scheme of Service for National Government Administrative Officer, October, 2015, and its own criteria for shortlisting. After the conclusion of the recruitment process, the panel recommended the appointment of the 5th Respondent. 23.The 2nd Respondent confirms that the 5th Respondent's appointment was authorized by the Principal Secretary and Communicated to the County Commissioner through letter Ref. No. MOINNSEC.5/1/5 dated 28th March, 2025 and to the Deputy County Commissioner through letter Ref. No. Z.132 VOL. I/ 68 and dated 18th June, 2025. 24.The 2nd Respondent admits that the 5th Respondent did not meet the minimum qualifications that required her to have a Kenya Certificate of Secondary Education (KCSE) Mean Grade C (Plain). It concedes that the recruitment of Chief, Mitaboni Location did not comply with the Constitutional and legal provisions that guide recruitment and appointments in the Public Service specifically, Article 232 (1) of the Constitution; Section 36 of the Public Service Commission Act; and Appendix B of the Revised Scheme of Service for National Government Administrative Officer, October, 2015. The 5th Respondent’s case 25.The 5th Respondent, on her part, states that she previously served as the Assistant chief for Ngiini Sub-Location after being appointed on 25th August 2020, which appointment was confirmed on the 6th July 2021. The 5th Respondent points out that her appointment as assistant Chief was never challenged by any of the Petitioners or the interested parties who were and are still holding offices of Assistant Chiefs. 26.It is the 5th Respondent’s case that she held that position until her impugned appointment to the position of Chief II Mitaboni location after garnering 82.66% score and becoming the best candidate among the shortlisted ones. The 5th Respondent insists that her appointment as Chief II Mitaboni location was conducted lawfully, procedurally, and in strict compliance with the Constitution, the Public Service Commission Act, and the applicable regulations; as it included public advertisement of the vacancy, competitive interviews, vetting and approval by the relevant authorities. 27.On the allegation against the 5th Respondent of being unqualified, the 5th Respondent avers that the Petitioners have not produced the revised schemes of service for national government administrative officers, which they rely on. She takes the view that the minimum KCSE grade requirement is merely an administrative or policy requirement not one set under the Constitution of Kenya. While she acknowledges that academic qualifications are relevant, she avers that they are not the sole determinant of merit under Article 232 of the Constitution, which recognizes competence, suitability, integrity, experience, and ability to serve the public effectively. The 5th Respondent states that her appointment was informed by local realities, including language and cultural competence, community acceptance, security and administrative effectiveness. She confirms that she meets these requirements having undertaken various trainings and having attained a diploma in social work and community development. It is the 5th Respondent’s case that the Constitution of Kenya deliberately avoids prescribing rigid academic thresholds for administrative offices such as that of a chief. Rigid insistence on academic thresholds in the prevailing circumstances would have defeated the objects of public service and undermined Article 232(1)(c) of the Constitution. 28.The 5th Respondent states that the Petition should fail for the reasons that the Petitioners have failed to demonstrate with precision which constitutional rights have been violated and how they have been violated. Dissatisfaction with an appointment or disagreement with administrative discretion does not amount to a constitutional violation. The 5th Respondent denies that the Petitioners had a legitimate expectation to appointment merely because they participated in the recruitment process. She highlights that the remedies sought, if granted, will unjustifiably disrupt public administration, occasion prejudice to the public, and amount to micromanagement of executive functions. According to the 5th Respondent, the appropriate remedy in the event the Respondents are found guilty of procedural irregularity would be prospective guidance, not nullification of a completed appointment. Determination 29.The petition was canvassed by way written submissions and the pleadings. Issues for determination 30.In their submissions dated 18th August 2025, the Petitioners identified the following issues for determination:i.Whether the Petitioners ought to be granted access to review the documents used in the evaluation and selection criteria of the Chief Mitaboni Locationii.Whether the Process of the Appointment of the 5th Respondent as the Chief Mitaboni Location was unconstitutional, improper, irregular and opaque.iii.Consequently, what orders should this Court grant to remedy such irregularity? 31.In their supplementary submissions dated 5th February 2026, the Petitioners submitted generally on matters raised in the Respondent’s responses and the 5th Respondent’s submissions. 32.On her part, the 5th Respondent identified the following issues for determination in her submissions dated 4th February 2026.i.Whether failure to meet a KCSE minimum grade of C (plain), without more, renders the appointment of a Chief unconstitutional.ii.Whether the appointment violated Articles 10, 73, or 232 of the Constitution.iii.Whether the Court should interfere with an administrative appointment made within the discretion of the Public Service Commission and the National Government Administration.iv.Whether the remedies sought are available and appropriate. 33.The court adopted the issues as framed by the 5th respondent which were in agreement with the others, namely-i.Whether failure to meet a KCSE minimum grade of C (plain), without more, renders the appointment of a Chief unconstitutional and Whether the appointment violated Articles 10, 73, or 232 of the Constitution.ii.Whether the Court should interfere with an administrative appointment made within the discretion of the Public Service Commission and the National Government Administration.iii.Whether the remedies sought are available and appropriate. Whether failure to meet a KCSE minimum grade of C (plain), without more, renders the appointment of a Chief unconstitutional and Whether the appointment violated Articles 10, 73, or 232 of the Constitution. 34.The 5th Respondent had been selected as the winning candidate, but the 2nd Respondent, in exercise of its mandate over public appointments, stated that the 5th Respondent, having obtained a D-, was not qualified. Does the academic grade matter? I would return with a positive as it was a requirement for the appointment to the position. Academic qualifications are core to any appointment in public service. The requirement is also consistent with the provision of the Constitution guiding the 2nd respondent in article 232(g) of the Constitution, to wit – ‘g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;’ The academic qualifications falls under merit. I uphold the position of the 2nd respondent that the 5th respondent having not met the academic threshold she was disqualified thus the No. 2 was duly appoint on competition and merit basis. Whether the Court should interfere with an administrative appointment made within the discretion of the Public Service Commission and the National Government Administration. 35.In Republic v Kenya Revenue Authority Exparte Shake Distributors Ltd [2012] KEHC 525 (KLR, it was held-‘ It must be noted from the beginning that the Respondent is a public body created by statute. It is therefore expected to perform its functions within the mandate donated to it by the law. It must act within the cocoon designed for it by Parliament. If it assumes a role not given to it by the lawmakers, then this Court will step in to correct it by issuing relevant orders. It must also comply with the rules of natural justice. Failure to do so will see its decisions quashed for procedural impropriety. The decisions of the Respondent must also be reasonable and rational otherwise the Court may find them to be unreasonable in the Wednesbury sense as enunciated in Associated Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680. That is to say the decision is so unreasonable to the extent that a reasonable man applying his mind to the same facts would not have arrived at such a decision. For the Applicant to succeed, it must prove that the decision of the Respondent offended these requirements.’ I upheld the foregoing observation to apply In the instant case. The court finds that the appointment of the 5th respondent, who did not meet the required academic qualifications for the position of chief, violated the provisions of Article 232(1)(g) of the Constitution. The fact that the 5th Respondent served as assistant chief did not justify disregard of the academic requirement for the higher position of Chief. The 2nd respondent acted within the law, and its constitutional mandate. The court has basis to intervene in the appointment decision as advised by the 2nd respondent. Whether the petitioners were entitled to relief sought 36.I return in the positive and hold that the matter is overtaken by events. The 2nd respondent having directed the cancellation of the appointment of the 5th respondent for lack of academic qualification, and the 1st interested party has been recommended for appointment on merit vide letter dated 22nd October 2025. The matter rests. The petition was brought in the public interest. I make no order as to costs. The file is marked as closed. 37.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoPetitioners: Karanja h/b Munguti2nd Respondents: Wangechi5th Respondent- Nzioki