[2024] KEHC 1968 (KLR)

Orogo v Chairman Board of Directors Kenya Revenue Authority & another (Petition E004 of 2023) [2024] KEHC 1968 (KLR) (1 March 2024) (Judgment)

Neutral citation: [2024] KEHC 1968 (KLR)

Republic of Kenya

In the High Court at Busia

Petition E004 of 2023

WM Musyoka, J

March 1, 2024

Between

Peter Kabinga Orogo

Petitioner

and

The Chairman Board of Directors Kenya Revenue Authority

1st Respondent

The Commmissioner General Kenya Revenue Authority

2nd Respondent

Judgment

1. This constitutional cause was initiated by the petitioner herein, Peter Kabinga Orogo, to be known hereafter as the petitioner, vide a petition, dated 12th October 2023, raising various questions for constitutional interpretation. The cause relates to matters touching on recruitment of employees of various cadres within the Kenya Revenue Authority, hence the petition names the senior most officials of the Kenya Revenue Authority as respondents. He has brought the suit against the Attorney General, as the legal advisor to the national government, of which the Kenya Revenue Authority is part.

2. His case is that Kenya Revenue Authority, sometime in June 2023 conducted a recruitment exercise of 1,406 revenue service assistants, out of which 614 were female and 792 males. He avers that 785 of the 1,406, representing 55. 8% of the total recruitment, came from 2 communities in Kenya, while the rest, 621 of the 1,406, representing 44. 2% of the total, came from the rest of the Kenyan communities. He avers that that those percentages were not proportionate to the last population census in Kenya. he further avers that the 1st respondent hails from Thika Constituency, Kiambu, but with roots in Kiharu Constituency Murang’a, and that Thika and Kiharu benefitted immensely from that recruitment, compared with other constituencies in the country. He states that Thika Town Constituency got 50 slots, while Kiharu Constituency got 40 slots; contrasted with 1 each allotted to Funyula, Matayos, Teso North, Bomachoge Borabu, Bomachoge Chache, Kitutu Chache, South Mugirango, Kisumu East, Kibwezi East, Kibwezi West and Kilome constituencies. He further avers that Thika Town and Kiharu constituencies got a combined total of 90 slots, which were in excess of what some Counties got, such as Busia County which had 13 slots, Kisii County which had 19 slots and Makueini County which got 15 slots. He asserts that the fact that the 2 constituencies associated with the 1st respondent got a lion’s share of the slots was not justified, and breached constitutional principles relating to equity, social justice, inclusiveness and protection of the marginalised, good governance, integrity, transparency and accountability, as it lacked ethnic diversity and regional balance. He asserts that the recruitment was based on ethnic bigotry/superiority, favouritism, cronyism and breach of national values. He further avers that the skewed recruitment violated the provisions of the Public Service Act.

3. The other segment of his case relates to recruitment of 8 Deputy Commissioners, and he avers that the positions had attracted ethnic alignments within the Board of Kenya Revenue Authority, with Board members inviting their relatives to join the organisation in what he calls a “shareholding scheme.” He alleges a sister of a member of the Board, working at Equity Bank, was primed for appointment as Deputy Commissioner in charge of Risk in Customs, while the remaining 7 positions were to be shared between the shareholders within the Board, with most of them going to persons from Murang’a County.

4. The third aspect of his case relates to a projected recruitment of about 600 graduate trainees, and he expresses fear that the manner and spread of their recruitment could follow the script for the revenue service assistants, given that Kenya Revenue Authority did not have an ethnic diversity and regional balance in recruitment. He avers that in the absence of such a policy, the respondents had introduced a new age discriminative recruitment restriction for graduate trainees, by capping the age of the applicants at 28 years without a justifiable reason. He asserts that proposed advertisement for graduate trainees, bearing that restriction, contravened Article 260 of the Constitution, which defined “Youth” to be persons of between 18 and 35 years of age.

5. The last component of his case relates to a projected recruitment of about 200 border control assistants, who he fears could be recruited in a manner that would follow the same script as that for the revenue service assistants, as there is no ethnic diversity and regional balance policy in recruitment.

6. The petitioner wraps up by expressing apprehension that if not checked and reminded to the national values and provisions of the Constitution, the respondents would disregard fair competition and merit as basis of appointments and promotions, representation of Kenya’s diverse communities, and affording adequate and equal opportunities for appointment training and advancement at of all levels of public service of men and women members of public from all ethnic groups and persons with disabilities, and share out the slots, in respect of the projected recruitments, based on ethnic considerations.

7. The petitioner has framed the following questions for determination:a.Whether in light of Articles 10, 27 and 232 of the Constitution, and section 10 of the Public Service (Values and Principles) Act, 2015, the respondents recruitment of 56% of revenue service assistants from 2 ethnic blocks is legal and proper;b.Whether the Board promotes and enhances fair competition and merit, as a basis of the recruitment; representation of the diverse Kenyan communities; and affording adequate and equal opportunities for recruitment, training and advancement, at all levels of public service, of men and women, members of all ethnic groups and persons with disabilities;c.Whether the respondents are legally mandated to ensure that the recruitments and future appointments reflect merit, equity, equality and Kenya’s ethnic diversity; andd.Whether the projected recruitments should be allowed to take place in the absence of an ethnic diversity and regional balance policy in recruitment.

8. The petitioner asserts that he is enjoined by Article 3(1) of the Constitution to respect, uphold and defend the Constitution, and he, based on that, petitions this court to investigate, examine and determine whether the respondents recruitment procedures, as presently structured, are proper and legal. He further asserts that the respondents are jointly and severally contravening the provisions of the Constitution and statute law, and invokes the jurisdiction of the court to interrogate the contraventions.

9. The petitioner seeks the following reliefs:1. a declaration that the recruitment made in June 2023, of 1,406 revenue service assistants, reflecting 56% from 2 ethnic communities, is unconstitutional, for offending the preamble to the Constitution and Articles 10, 27(1)(2)(4)(5), 56 and 232 of the Constitution;2. a declaration that the advertisement on 9th October 2923, for recruitment of 600 graduate trainees, to the extent that it restricts employment opportunities to youth who are below 28 years, is unconstitutional, as it offends the preamble to the Constitution and Articles 10, 27(1)(2)(4)(5), 56, 232 and 260 of the Constitution;3. a declaration that youth, who are between the ages 18 and 35, qualify for appointment as graduate trainees, in keeping with Article 260 of the Constitution;4. an injunction to restrain the respondents and their agents and servants, from advertising, conducting recruitment and appointment of Commissioners, Deputy Commissioners, Graduate trainees, border control assistants and any other cadre of employees of Kenya Revenue Authority, until there is adherence to the values, tenets and provisions of the Constitution and statute, by developing and deploying an ethnic diversity and regional balance policy; and5. Costs.

10. The affidavit, sworn by the petitioner in support of his petition, is more or less, a replica of the petition, for it is a mere regurgitation, word for word, of the petition. What is of importance are the annexures attached to it. The first annexure is a table showing the allocation of the slots, for the positions of revenue service assistants, per constituency for 279 constituencies, indicating distribution between the male and female genders. The second annexure is an extract from the 2019 Kenya Population and Housing Census, on distribution of population by administrative units. The third annexure is of advertisements for positions of Deputy Commissioner. The fourth annexure of the advertisement for the positions of graduate trainees. The last annexure is a notice of vacancies for the position of Border Control Assistant.

11. The respondent reacted to the petition, by way anacidities, sworn on 5th February 2024, by the 1st respondent, Anthony Ng’ang’a Mwaura, and filed herein electronically on 13th February 2024 and manually on 15th February 2024

12. Regarding the recruitment of the 1,406 revenue service assistants, the 1st respondent avers that the exercise attracted very many applicants, so much that physical interviews could not be conducted, and the respondents opted for aptitude tests, and those with the highest scores were recruited. He avers that the aptitude tests were not interfered with, as the candidates had already been informed that that was going to be the mode of selection. He further avers that the majority of applications came from the Kikuyu and Kalenjin communities. He further avers that the respondents give prominence to merit, based on aptitude, and that the other considerations, including ethnic diversity and regional balance, follow. He denies exerting any influence on the recruitment. He further avers that there was a policy which guides such recruitment, and which is underpinned by equity, merit, diversity and transparency. Regarding the proposed appointments of Deputy Commissioners, he denies the allegation that there was a scheme to have them shared out in a pre-arranged or pre-agreed manner. He reiterates that there was a policy on recruitment and selection, which was guided by diversity and inclusion policy, providing for a hiring process that attracted high performing applicants, underpinned by merit, equity, diversity and transparency. He denies that the respondents did not have an ethnic diversity and regional balance policy in recruitment. He cites paragraphs 2. 12 and 2. 23 of the Human Resource Policy, which emphasise appointment of high preforming applicants , underpinned by the principles of merit, equity, diversity and transparency, and compliance with gender and disability mainstreaming, encouragement of participation of the youth, and ensures regional balance that depicts the face of Kenya without compromising the principle of merit. On the age capping at 28 years, in respect of the graduate trainees, he avers that the programme targets fresh graduates, and there was no discrimination on grounds of age. He makes a case that the recruitment of the revenue service assistants should not be declared unconstitutional as the same was done in line with policy, there was a rigorous aptitude test, public resources have been expended in the recruitment exercise and the subsequent training, employment rights have vested, the persons recruited are already playing a critical role in revenue collection, the revenue service assistants have already taken up employment and incurred financial commitments and they have a right to be heard. He avers that there was no discrimination on grounds of age, and the cap at 28 only targeted fresh employees, and did not apply to the other cadres, such as border assistants and Deputy Commissioners. The 1st respondent has attached to his affidavit the Kenya Revenue Authority Approved Human Resource Policies, 1st July 2023.

13. Directions on the disposal of the petition were given on 20th December 2023, vide the ruling that was delivered on that date, for canvassing by way of written submissions. Both sides complied. The petitioner’s written submissions are dated 15th January 2024, and were filed herein on 12th February 2024. Those by the respondents are dated 12th February 2024, and were filed herein on 13th February 2024.

14. The petitioner submits that the respondents have not disputed the facts as set out in the petition, and that what they focus on is existence of a Recruitment and Selection Policy and the Diversity and Inclusion Policy. It is submitted that the respondents have not demonstrated that the policy was implemented during the recruitment of revenue service assistants. It is further submitted that the respondents have stated that 2 ethnic communities had the highest number of applicants for the position of revenue service assistants, being 46,524 out of 127,117, but no evidence was provided. It is further submitted that that information discloses that the total number of applicants from the 2 communities was only 36% of the applicants nationally, and it was out of that number that the 56% were recruited.

15. On the law, the petitioner cites Article 22 of the Constitution, on who has a right to bring constitutional proceedings, and Communications of Kenya & 5 others vs ,Royal Media Services Limited & 5 others [2014] eKLR, where Article 22 was discussed. It is argued that the petition is premised on Article 22(1)(c), as it is in public interest. It is submitted that there was evidence of a clear breach of the provisions of the Constitution, statute law and even policy, for the recruitment of the revenue service assistants was in total disregard of the constitutional principle of proportionality. It is submitted that the respondents did not adhere to the constitutional provisions and tenets of equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability, as there was no adherence to the Kenya Revenue Authority Ethnic Diversity and Regional Balance Policy in the recruitment. It is submitted that the recruitment was based on ethnic bigotry/superiority, favouritism, cronyism and breach of national values. It is further submitted that the respondents were enjoined by Article 10 of the Constitution to uphold national values and principles of governance, which are patriotism, national unity, rule of law, equity, inclusiveness, equality, protection of the marginalised, good governance, integrity, transparency and accountability, and that recruitment of 56% of the revenue service assistants from 2 communities in the country cannot be said to be upholding those values. Article 27(1)(2(4)(5) of the Constitution is also cited, equality, before the law, right to equal protection, and equal benefit from the law. It is submitted that the State shall not discriminate directly or indirectly against any person on any ground, including on grounds of ethnic or social origin. It is submitted that a recruitment that saw 50 revenue service assistants recruited from Thika Town Constituency and 40 from Kiharu Constituency, while some other constituencies got 1 each, was a picture of inequality, inequity, favouritism, and discrimination, based on ethnic origin and region. Article 56(a)(b)(c) of the Constitution is cited on the matter of affirmative action, and it is submitted that the Kikuyu and Kalenjin communities were not marginalised groups that merited provision of special opportunities to access employment at Kenya Revenue Authority. Article 232(1)(i)(ii) is cited on values of public service as including adequate and equal opportunities for appointment training and advancement at all levels of public service, for members of all ethnic groups. It is submitted that the respondents have not demonstrated that they afforded adequate and equal opportunities to all Kenyans, during recruitment of the revenue service assistants, thus neglecting ethnic diversity of the country and creating a regional imbalance in the recruitment. Community Advocacy and Awareness Trust & 8 others vs. Attorney-General Interested Party National Gender and Equality Commission & 5 others [2012] eKLR (Majanja, J). It is submitted that the recruitment of 1,406 revenue service assistants, where 56% came from 2 communities, was unconstitutional, for it offended the preamble to and Articles 10, 27(1)(2)(4)(5), 56 and 232 of the Constitution, and the court should remind the respondents of that fact, and declare the recruitment unconstitutional.

16. On the matter of age restriction on the recruitment of graduate trainees, it is submitted that the same is discriminatory and unjustified, and that the advertisement contravened Article 260 of the Constitution, where youth encompasses persons aged between 18 and 35 years. It is argued that it discriminates against a class of youth who are above 28 years of age, and it was, therefore, unconstitutional, for offending the preamble to and Articles 10, 27(1)(2)(4)(5), 56, 232 and 260 of the Constitution. Law Society of Kenya vs. Attorney-General & Another [2019] eKLR is cited. It is argued that the decision of the respondents, although intended to benefit the youth, limits access to the opportunity to a certain class of the youth, and it is, therefore, unconstitutional.

17. Finally, it is submitted that the respondents and their agents and servants ought to be barred from undertaking any recruitment of any cadre of employees at Kenya Revenue Authority until they adhere to the values tenets and the provisions of the Constitution and statute law, by developing and deploying an ethnic diversity and regional balance policy.

18. The respondents identify 3 issues for determination: whether there was a breach of the Constitution, whether the Kenya Revenue Authority had an ethnic and deployment policy, and whether the orders sought were available.

19. On the first issue, it is submitted that the recruitment process for revenue service assistants was meticulously designed to ensure engagement of individuals with the highest qualifications and competencies, and that merit was the paramount criterion, throughout. Article 232 of the Constitution is cited, on values and principles of public service, where high professional ethics, effective efficient and economic use of resources, responsive prompt and equitable provision of services, involvement of people in policy making, accountability, transparency, merit and competitiveness, representation of diverse Kenya communities, and equal opportunities for appointment training and advancement, and men and women are listed. The other values are listed as members of all ethnic groups, and persons with disabilities, and that these values apply to the public service at all levels, including within all State corporations. It is submitted that the positions were publicly advertised, applications were received, and were evaluated, so that the individuals selected were those with ability to contribute to the objectives of the organisation. It is submitted that emphasis was on merit.It is submitted that the selection was not swayed by regional considerations. Section 10 of the Public Service Act is cited on importance of merit in public service. It is submitted that there was a fair representation of all the communities in Kenya, from that selection. It is argued that due to the large number of applicants, achieving regional balance was rendered impractical, hence the respondents resorted to merit and fair competition. It is submitted that there was transparency and accountability, and the correct procedures were followed. Katiba Institute & another vs. Attorney-General: Julius Waweru Karangi & 128 others (Interested Parties) [2021] eKLR is cited to support that contention. It is submitted that the petitioner had not demonstrated use of undue influence and nepotism in the recruitment, or in recruitment of individuals who lacked qualifications. It is submitted that an unequivocal ethnic balancing should not supersede competence and merit in public appointments. It is submitted that the recruitment was not determined by ethnicity, but by individual qualifications. It is emphasized that although regional balance is a constitutional imperative it cannot override merit. Community Advocacy and Awareness Trust & 8 others vs. Attorney-General & 6 others [2012] eKLR on what the relationship that there should be between merit, on one hand, and ethnic diversity and regional balance, on the other. Article 232 of the Constitution is cited, for emphasis on fair competition and merit, and it is submitted that the organisation prioritised competence and qualifications, by ensuring a recruitment driven by merit, and practical challenges of achieving regional balance are cited. It is argued that in a country with a multitude of tribes, it becomes impractical to achieve tribal or ethnic balance. Rebecca Simson, “Ethnic (In)Equality In the Public Services of Kenya and Uganda,” African Affairs 118. 470 [2019] 75-100, on the issue of the complexity of getting ethnic diversity and regional balance right. It is asserted that only competent individuals were appointed given the nature of tax collection. The argument is that in a merit-based approach to public service appointments has the potential of creating incongruence between perceptions of inequality and the actual manifestation.

20. The other limb of the first issue, with respect to pleadings in constitutional causes. It is argued that the petition lacks necessary details to identify specific instances of constitutional breaches, hindering a clear understanding of the infringements alleged. It is also submitted that the petitioner failed to provide concrete proof that there was undue influence or nepotism in the appointment, and Shadrack Kosgei & another vs. Governor of Nakuru County & 2 others [2016] eKLR is cited to support that submission. It is submitted that the use of the names of an appointed individual as basis for inferring ethnicity is not sufficient basis for the claims of ethnic bias, and Okiya Omtatah Okoiti vs. Selection Panel for the National Land Commission & 3 others; Gershon Otachi Bw’Omanwa & 10 others (Interested Party) [2019] eKLR on that. It is submitted that the petitioner did not seek any information on the ethnicity of the individuals recruited.

21. On the second issue, on ethnic diversity and regional balance, the respondents make the short submission that that the respondents have always been guided by its Approved Human Resource Policies and Diversity Management Policy in its recruitment processes. Paragraph 2. 12 of the Human Resource Policy is cited, on the interplay between recruitment of high performing applicants, and the principles of merit, equity, diversity and transparency; and paragraph 2. 23, about the balance between gender and disability mainstreaming policies, and participation of the youth, on the one hand, and ensuring regional balance that depicts the face of Kenya, on the other, while still being careful not to compromise the principle of merit.

22. On the third ground, whether the prayers sought are available for granting, the respondents submit around public interest, that Kenya Revenue Authority is a tax collector, and government functions are sustained from its activities, and nullifications of the appointments already made would disrupt tax collection, by impeding Kenya Revenue Authority ability to collect taxes. It is submitted that nullification of the appointments would deny Kenya Revenue Authority a skilled workforce. It is also submitted that heavy investments have been made in training , capacity building and remuneration, and a nullification would amount to wastage of public resources. It is argued that public interest militated against nullification. Okiya Omtata Okoiti vs. President of Kenya & 4 others [2019] eKLR is cited on emphasis being given to the grave ripple effect on the economy and management of Kenya Revenue Authority if appointments already made are nullified. It is argued herein that a nullification in this case would extend beyond financial implications.

23. To advance their case, the respondents cite the proportionality principle, and rely on Jacqueline Okuta & another vs. Attorney-General & 2 others [2017] eKLR , which is about sacrificing a personal or individual right in order to pursue another legitimate aim, and to justify the restriction, on the basis that the departure would be proportionate to the purpose of the restriction. It is argued that the abandonment of ethnic diversity and regional balance was proportionate to having merit-based appointments, which are aligned to the constitutional values and principles, particularly those set out in Article 232 of the Constitution. It is argued that the ethnic and regional balancing was sacrificed for a legitimate aim, of maintaining a merit-based system. It is about balancing competing equal rights, and enabling other important public concerns, such as national security and public order, to be taken into account, and Okiya Omtata Okoiti vs. President of Kenya & 4 others [2019] eKLR, Community Advocacy and Awareness Trust & 8 others vs. Attorney-General Interested Party National Gender and Equality Commission & 5 others [2012] eKLR (Majanja, J) and Peter Odoyo Ogada & 9 others vs. Independent Electoral and Boundaries Commission of Kenya & 14 others [2013] eKLR are cited in support.

24. The respondents next address the prayer for injunction. I am urged to dismiss the same on 3 points: that the respondents had established that an ethnic diversity and regional balance policy existed; the recruitment was guided by the recruitment and Selection Policy, as read with the Diversity and Inclusion Policy, both of which are aligned to the Constitution of Kenya, hence the order sought for development and deployment of an Ethnic and Regional Balance Policy is not valid; and that the order restraining the respondents from recruiting would deny them an opportunity to enhance human resource capacity, which would ultimately affect tax collection.

25. Finally, the respondents urge the court not to declare the recruitment of the revenue service assistants unconstitutional on 7 grounds: that the recruitment was based on sound policy documents; the appointees were taken through a rigorous aptitude test, hence only those with very high scores were appointed; public resources have been expended in the process of training, salaries and logistics; employment rights have been vested; the appointees are playing a key role in tax collection, the said appointees have financial obligations that would be adversely affected by such an order; and the said appointees have a right to be heard.

26. This cause is about a recruitment that has been carried out and completed, and 3 others that are planned. The argument is that the recruitment actualised was done in breach or contravention of the Constitution, and it is feared that the planned 3 recruitments could follow the same script. It is argued that the Kenya Revenue Authority has no policy on ethnic diversity and regional balance, when it comes to recruiting staff, and that that was what caused the last recruitment to be skewed in favour of some communities and regions as against others, hence the fear that future recruitments, in the absence of such a policy, could result in similar recruitments, where certain communities and regions unduly benefit, at the expense of other communities and regions.

27. So, the starting point should be with an examination of the said recruitment of 1,406 revenue service assistants, to assess whether or not it passed constitutional muster, and whether it can be said that the same violated or breached the Constitution and should be declared unconstitutional. The questions around the 3 planned recruitments, of graduate trainees, Deputy Commissioners and border patrol assistants, would largely depend on the answer to the first issue.

28. The facts or statistics about the recruitment of the 1,406 revenue service assistants are not disputed. Out of the 1,406; 614 were female and 792 were male. Again, out of the 1,406; 785 were Kikuyu and Kalenjin, and that figure made up 56% of the total. Thika Town Constituency was said to have gotten 50 slots and Kiharu Constituency 40 slots. That is contrasted with 11 other constituencies, which got 1 slot each. Busia County was cited as getting 13 slots in total, Kisii County 19 slots, and Makueni County 15 slots. The case by the petitioner is that the distribution of the 1,406 slots should have been a little bit more even, guided by the demographics of Kenya, as per the population census last conducted in 2019. He argues that going by those demographics, the Kikuyu and the Kalenjin, and some regions, got a share that was disproportionately high compared with the rest. He blames it on the respondents, and more particularly the 1st respondent, given that the constituencies where he allegedly hails from, or is associated with, appeared to benefit disproportionately from that recruitment.

29. The respondents have not contested the facts or figures or statistics. Their case is that most of the applicants came from the Kikuyu and Kalenjin communities. Secondly, that because of the very high number of applicants, it was difficult to achieve ethnic diversity and regional balance. Thirdly, that the nature of tax collection demanded that recruitment should focus on merit, and less on regional balancing and achieving ethnic diversity, hence the respondents focussed on hiring high performing individuals, with superior academic qualifications, rather than in ethnic and regional balancing.

30. Statistics on population of the various communities in Kenya, from the 2019 Kenya Population and Housing Census, project that the Kikuyu constitute 18% of the total Kenyan population, while the Kalenjin comprise 14%. Combined, that would make 32%, of the total population, meaning the other local communities would comprise 68% of the population. An even sharing of the employment slots between the communities would mean that the Kikuyu and Kalenjin combined would be entitled to an allocation of 32% of the total number of slots available, leaving 68% to be shared by the rest of the communities. Going by those statistics, the 56% allotted to the 2 communities appears to be grotesquely disproportionate to what was the due share to them.

31. The respondents argue that most of the applicants were from these 2 communities, and, therefore, that should explain the disparity. It is pointed out, by the 1st respondent, that 23,953 applications came from the Kikuyu and 22,571 came from Kalenjin applicants, out of a total of 127,117 who applied for the position. The petitioner has pointed out that applications from the Kikuyu and the Kalenjin did not amount to 56% of the total, but to 36% of the total, going by the figures given by the 1st respondent. That would appear to be close to the demographics from the 2019 population census, which puts the total population of the 2 communities combined at 32% of the total population. The explanation, therefore, that the 2 communities got higher slots on account of the higher number of applications from them, does not appear to be supported by the statistics. What is, perhaps, more plausible is the explanation that the respondents went for merit, which suggests that the most competent and academically qualified applicants came from the 2 communities.

32. So, the question is, what is the constitutional and legal position, on ethnic diversity and regional balance? Is it even important? The Constitution, under which Kenya is operating, and which was in force in June 2023, when the impugned recruitment was conducted, was promulgated in 2010. There was a history to it. There were challenges, of a historical nature, that it sought to address. The promulgation came shortly after the electoral violence that followed the contested elections in 2007. Issues around ethnic diversity and regional balance, in the allocation and distribution of resources, including employment opportunities in the public sector, were at the heart of that conflict, and informed the law that is the Constitution of Kenya, 2010, and the legislation passed to give it effect. There were feelings of exclusion, marginalisation and domination. The values of the Constitution of Kenya 2010 are routed in that history, and point towards the desire to steer the country and nation away from that trajectory.

33. The preamble, for example, talks about honouring the struggle to bring about freedom and justice to the land; about being proud of the ethnic, cultural and religious diversity of the nation, and the determination to co-exist in peace and unity as one indivisible nation; about nurturing and protecting the wellbeing of communities and the nation; and about recognising the aspirations of all Kenyans for a government based on human rights, equality, freedom, democracy, social justice and the rule of law. The by-words from the preamble are justice, diversity, co-existence, peace, unity, aspirations of all Kenyans, human rights, equality, freedom, democracy, social justice and the rule of law.

34. The second level would be the place of the Constitution in the entity called Kenya. Article 2 of the Constitution, declares the Constitution to be the supreme law in the land, binding all persons, and State organs. So supreme it is, that its validity or legality is not subject to challenge by anyone, before a court of law or other organ of the State, and that any law inconsistent with it is void, and any act done or omitted in contravention of it is invalid. Article 3 imposes an obligation on every person, who is subject to it, to respect, uphold and defend the Constitution.

35. The third level is about the values that the Constitution has imposed on those who are subject to it, Article 10 sets out the national values and principles that all State organs, officers and all persons, who have a duty to apply or interpret the Constitution, or to enact apply or interpret the law, or who have to make or implement public policy. That pretty much covers all the organs of government, be it Parliament, the Executive, the Judiciary, the civil service, public corporations and the bureaucrats who run these organs and entities. The values that should bind them, in the discharge of their respective mandates, are patriotism, national unity, sharing and devolution of power, rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalised, good governance, integrity, transparency and accountability, and sustainable development.

36. The fourth and final level is the Bill of Rights, in Chapter 4 of the Constitution. Article 19 declares that the Bill of Rights is an integral part of the democratic state of Kenya, and it is the framework for social, economic and cultural policies. Human rights are recognised and protected, under the Bill of Rights, in order to preserve the dignity of individuals and communities, and to promote social justice and the realisation of the potential of all human beings. It is asserted, under Article 19, that the rights and freedoms, set out in the Bill of Rights, belong to the individual, and are not granted to the individual by the State. It is further asserted in Article 20, that the Bill of Rights applies to all law, and binds all State organs and all persons. Courts, which have to interpret the Bill of Rights, are obliged to promote values that underlie an open democratic society based on human dignity, equality, equity and freedom; and which also promotes the spirit, purport and objects of the Bill of Rights. Article 21 imposes a duty on the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.

37. With respect to the specific rights and freedoms, detailed in the Bill of Rights, which may be relevant to the matter at hand, Articles 27 and 28, stand out. Article 27 states the equality principle. That all persons are equal before the law, and have a right to equal treatment and protection, and equal benefit of the law; that men and women are to be treated equally; that there should be no discrimination based on race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The State is urged to take deliberate steps towards guaranteeing these rights, including initiating affirmative action programmes and policies to accelerate their achievement. Article 28 is on human dignity, that every person has inherent dignity and the right to have that dignity respected and protected.

38. Article 56 is also relevant. It is about minorities and marginalised groups. It enjoins the State to put in place affirmative action programmes tailored to ensure that minorities and marginalised groups participate and are represented in governance and other spheres of life; are provided special opportunities for access to educational and economic fields; are provided special opportunities for access to employment; among others. Affirmative action is defined in Article 260, to include measures meant to overcome or ameliorate inequity or systemic denial or infringement of a right or fundamental freedom. Marginalised communities are interpreted in the same provision, to mean relatively small communities in terms of population that are unable to participate fully in the integrated social life and economic life of Kenya. It also refers to traditional and indigenous communities that have preserved their cultures and identity, which fact has tended to keep them outside of the integrated social and economic life of the rest of the country. Pastoral and nomadic communities also fall under this interpretation.

39. Kenya Revenue Authority is a public entity, within the Executive organ of the State, although incorporated under an Act of Parliament, and it is, therefore, a State corporation. Being a public entity, it is subject to Chapter 13 of the Constitution, on the Public Service. The values and principles of public service are spelt out in Article 232, which states that the same are to apply to all State organs and all State corporations. The values and principles that the public service must adhere to include high standards of professional ethics; efficient, effective and economic use of resources; responsible, prompt, effective, impartial and equitable provision of services, involvement of the people in the process of policy making; accountability for administrative acts; transparent provision to the public of timely, accurate information; fair competition and merit as the basis of appointments and promotions; representation of Kenya’s diverse communities; and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of men and women, the members of all the ethnic groups, and persons of disability.

40. What I have set out is the constitutional foundation upon which State entities, like Kenya Revenue Authority, stand on, and the principles that ought to guide their daily operations. The Constitution has asserted itself to be the supreme law of Kenya, in Article 2. That would mean that whatever the Constitution has decreed must be followed, and, by virtue of Article 2(4), a departure from the constitutional prescriptions would render any act or omission invalid.

41. The question is was Kenya Revenue Authority bound to observe the values and principles stated in the Constitution? To the extent that Kenya Revenue Authority is a creature of the Constitution, being a State entity, within the Executive organ of the State, it is bound by the Constitution, in everything that it does. We are talking here about recruitment of staff. That function is envisaged in Article 232 of the Constitution, with respect to opportunities for appointment and advancement. Article 232 is explicit that adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, should be afforded to men and women, members of all the ethnic groups, and persons of disability. This is a restatement of the equality principle in Article 27, that all should be treated equally: men and women, members of all ethnic groups and persons with disability. Article 232 also refers to representation of all diverse ethnic communities that comprise Kenya. This portion of Article 232 is about employment or appointments into positions in the public service, like Kenya Revenue Authority.

42. The instant case is about ethnicity, and the question is whether the respondents were faithful to Article 232, in terms of treating members of all ethnic groups equally in making the appointments with respect to the 1,406. There would have been equal treatment of members of all the ethnic groups if the available positions were shared out proportionately to the population dynamics at play in Kenya. A recruitment of 1,406 individuals in one exercise qualifies for mass employment. That would have been a perfect opportunity for the respondents to exercise a fair distribution of the available positions amongst members of all the ethnic groups in Kenya, proportionately, given that there were enough positions to go around.

43. The other aspect of Article 232 is about representation of Kenya’s diverse communities in the public service. This again points to employment or appointments. They should be done in a manner that enables all representation of the diverse Kenyan communities. There were many slots up for grabs, and the respondents ought to have ensured that there was a fair representation of all the diverse communities. That representation should not have been mere tokenisms, but fair and equitable. One of the constitutional values in Article 10 is equity. The way the recruitment was handled did not meet the aspect of equitable representation of the diverse communities of Kenya.

44. The respondents sought to justify the skewed recruitment, on grounds of merit. They cited Article 232, where fair competition and merit, as the basis of appointments and promotions, is stated as one of the values and principles in public service. What the respondents did not bring out is the fact that recruitments and appointments made on the basis of fair competition and merit are subject to representation of the diverse communities of Kenya and the equality principles, which would require consideration of members of all the ethnic groups in Kenya. Fair competition and merit, as values, do not stand on their own. They must be considered alongside those other 2 values, which bring into the matrix, ethnic diversity and regional balance. A recruitment based purely or only on merit, to the total exclusion from consideration of ethnic diversity and regional balance, would violate or contravene Article 232. The instant recruitment, from the words of the 1st respondent, was founded exclusively on merit, and it resulted in a number of disproportionate slots being allocated to members of 2 communities at the expense of the other over 40 ethnic groups in the country.

45. For avoidance of doubt, the relevant provisions in Article 232 state as follows:“232(1).The values and principles of public service include –(a)…(b)…(c)…(d)…(e)…(f)…(g)subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;(h)representation of Kenya’s diverse communities, and(i)affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of –(i)men and women;(ii)the members of all ethnic groups; and(iii)persons with disabilities.”(2)The values and principles of public service apply to public service in -(a)…(b)all State corporations.”

46. As indicated above, the provisions in Article 232 capture the essence of the principle of equality in Article 27 of the Constitution, with respect to men and women being treated equally, and more importantly, for this discussion, there being no discrimination or unequal treatment, based on ethnic or social origin.

47. The values and principles stated in Article 232 reflect those stated in the preamble, which I have recited above. It is about justice, in terms of when employing or making appointments ensuring that there is representation of all the diverse communities of Kenya, and ensuring equity and equality by affording equal opportunity to members of all the ethnic groups in Kenya. This is about social justice, where all ethnic groups are considered, and distribution of available opportunities is in a balanced manner between them. It is about celebrating ethnic and other forms of diversity, and factoring them in all the programming, including in recruitment, employment and appointments. It is about promoting national unity and creating one indivisible nation, but treating all equally, and distributing all resources and opportunities equally, including those in employment and appointments. It is about being committed to promoting the wellbeing of communities and the nation, by being fair and treating every community and ethnic group fairly and equally with all others. It is about recognising the aspirations of all Kenyans, for a government based on human rights, equality, democracy, social justice and the rule of law. Kenya Revenue Authority is part of the government of Kenya, and it has a duty to recognise the aspirations of Kenyans towards that end, and it bears a duty to ensure that those aspirations are met, by respecting human rights, by way of treating all equally and with dignity. By practising democracy, in terms of being inclusive, through embracing members of all Kenya ethnic groups, and incorporating them in its policies, in recruitment, to ensure all ethnic groups in Kenya are represented at Kenya Revenue Authority at all levels, and are accorded equal opportunities with everyone else. Social justice is pretty much about the same theme. Rule of law would work against discrimination, unequal treatment, exclusion, among other factors. These same principles are captured in Article 10 of the Constitution.

48. The 1st respondent is accused, for the skewed recruitment, particularly with the relatively high number of successful applicants from Thika Town and Kiharu Constituencies, where he allegedly hails from. He has not denied that he is connected to these 2 constituencies, but he has denied complicity. I have no evidence before me that the 1st respondent is responsible for the outcome in that recruitment. The only thing I note is that he supports and defends it, and gives a rationale or explanation for it. To my mind, what matters is not whether the recruitment was deliberately manipulated to favour certain communities or regions, but whether the exercise, given its outcome, was conducted in a manner that was faithful to the constitutional dictates, values and principles, as encapsulated in the preamble to the Constitution, and Articles 2, 10, 56 and 232 thereof.

49. I believe that I have said enough to demonstrate that the recruitment of the 1,406 revenue service assistants was not carried out in an exercise that accorded with the values and principles set out in the Constitution. The effect of it is that the respondents did not act consistently with the Constitution, with the result that a large section of Kenyans were not treated equally. That amounted to contravention of the Constitution, and the outcome was that the said recruitment ran afoul of Article 2(4) of the Constitution.

50. The other consideration is whether the age restriction, with respect to the graduate trainee positions, is discriminatory. The respondents have capped the upper ceiling at 28 years, and the petitioner argues that that is discriminatory. The argument is that youth, under the Constitution, Article 260, covers individuals between the age of 18 and 35, and that the capping at 28, cuts off those aged between 29 and 35. The respondents counter by saying that the position of graduate trainee is at entry level, and, essentially, it is meant for fresh graduates. The presumption would be that most fresh graduates would be in their 20s, which is not unreasonable. However, there could be a few who would graduate in their 30s, due to a variety of reasons, including starting off late in school, challenges at school and college with fees or illnesses, among others. There could also be a case of individuals graduating in their 20s, but being unable to get employment well into their 30s. The capping could lock out a few deserving cases of fresh graduates in their early 30s, yet they are youth within the meaning assigned to that word by Article 260 of the Constitution.

51. Regarding the Deputy Commissioners, the petitioner’s case is that the appointment of 8 deputies has attracted ethnic alignments within the Board, and that some positions are already ear-marked for certain individuals. Unfortunately, these allegations are not supported by proof of any sort. There is no paper trail that would support the same. No particular individuals have been named. The allegations belong to the realm of rumour and conjecture. The only concern could be if the appointments are made along the same principles as the 1,406 revenue service assistants, where focus was, allegedly, only on merit, to the exclusion of everything else decreed by the Constitution, in Article 232, and especially representation of the diverse communities in Kenya, and adequate and equal opportunity for appointment being afforded to members of all ethnic groups.

52. The last aspect of the petition is about the border control assistants. There is really no specific complaint about this position, except the fear, in view of what happened with the 1. 406 revenue service assistants, that the projected recruitment could be done in a manner that may not accord with Article 232(1)(h)(i) of the Constitution, in terms of the respondents recruiting based only on pure merit, without being faithful to the constitutional requirement to ensure representation of all the diverse communities of Kenya in any appointments or recruitment, and affording adequate and equal opportunity for appointment to members of all the ethnic groups.

53. The concern, particularly with the projected appointments, is about the respondents not having a policy on ethnic diversity and regional balance with respect to recruitment of staff. The respondents counter that they do have such a policy, and have placed documents on record, to support that, and they have pointed at particular provisions in the documents where policy on ethnic diversity and regional balance is said to be stated, being clauses 2. 2 and 2. 3.7, of the Kenya Revenue Authority Approved Human Resources Policies, 1st July 2023, which state as follows:“2. 2 Policy Statement: the Authority is an equal opportunity employer with non-discriminative recruitment and selection process.”

“2. 3.7The Authority will comply with the gender and disabilities mainstreaming policies, encourage participation of youth, and ensure regional balance that depicts the face of Kenya without compromising the principle of merit.”

54. The question is, do these provisions state policy on ethnic diversity and regional balance in recruitment? Do they capture the spirit, essence and intent of Article 232(1)(h)(i) of the Constitution on the matter of appointments of Kenya Revenue Authority staff? It is Article 232(1)(h)(i) of the Constitution that touches on ethnic diversity and regional balance. “Representation” would denote a recruitment that would ensure that diverse ethnic communities have a representation in the Kenya Revenue Authority workforce, and in “representation” there would be the connotation of proportionality, so that the number of representatives is aligned to the demographic dynamics and realities, for it be adequate and equal. A broad reading of the 2 provisions or clauses would suggest that the recruitment policies of Kenya Revenue Authority capture the essence of Article 232 of the Constitution. However, a closer look will reveal that clause 2. 3.7 subordinates the requirements relating to equality, to the principle of merit, yet, under Article 232 of the Constitution, it should be the other way around, the principle of merit is subject to the equality principle. Article 232(1)(g) makes the principle of merit subordinate to the Article 232(1)(h)(i), on equality and representation.

55. These are constitutional requirements. There is no legislation to guide the Kenya Revenue Authority on how to balance between the 2 principles, hence Kenya Revenue Authority ought to have come up with clear policy guidelines on how these principles are to be applied in recruitment, to obviate a situation, such as the instant one, where a recruitment founded purely on one of the principles has resulted in 2 communities, who should have been entitled to 32% of the slots, getting 56% of them, to the detriment of the other communities who should have been entitled to 68% of those slots. Without clear policy guidelines on these matters, the Kenya Revenue Authority is likely to engage in another recruitment with similar results, something which would entrench a staff establishment heavily skewed in favour of some communities, to the disadvantage of other communities, a situation which would not reflect the aspirations of Kenyans, as emerges from the provisions of the Constitution of Kenya, 2010.

56. So, what should I do in the circumstances? The respondents have urged me not to nullify the recruitment of the 1,406 revenue service assistants, as that would have serious ramifications on revenue collection, and on the employees personally. What I have before me is a constitutional cause. It seeks enforcement of provisions of the Constitution. Article 2 of the Constitution has declared that the Constitution is the supreme law in Kenya, and that anything done, which does not accord with it, would be null and invalid. I am not invited to nullify the recruitment, but to assess whether the process of that recruitment met the standards in Article 232 of the Constitution, as read with the preamble, and Articles 2, 10, 27 and 56 of the Constitution. If I find that there was non-compliance, the consequence would be that the recruitment was done in a manner that violated the Constitution, and would be invalid. My hands are tied. I have found that the recruitment did not accord with Article 232(1)(h)(i) of the Constitution, and, therefore, that rendered the same unconstitutional.

57. The final orders, that I shall make in the circumstances, are as follows:a.a declaration that the June 2023 recruitment of the 1,406 revenue service assistants was unconstitutional, as it offends the preamble to the Constitution and the provisions of Articles 10, 27, 56 and 232(g)(h)(i) of the Constitution;b.a declaration that the 9th October 2023 advertisement for 600 graduate trainees, to the extent it limits employment opportunities to youth of 28 years, is unconstitutional, as it offends the preamble to the Constitution and Articles 10, 27, 56, 232 and 260 of the Constitution;c.an order barring the respondents from recruiting and appointing staff at all levels, until an ethnic diversity and regional balance policy is deployed, giving effect to the values and principles stated in the preamble and Article 232(g)(h)(i) of the Constitution, which policy should be in place within 30 days of this order; andd.this being public interest litigation, there shall be no order on costs.

58. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT BUSIA THIS 1ST MARCH 2024W. MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ambani, instructed by Lukorito & Company, Advocates for the petitioner.Mr. Eredi and Mr. Muhoro, instructed by the Attorney-General, for the respondents.