[2021] KEHC 8101 (KLR)
The court found that the Cabinet Secretary lacked legal authority to revoke the appointments of the five elected members of the Kenya Veterinary Board before the expiry of their statutory term. The appointments were made pursuant to a lawful election process and gazetted for a fixed term of three years. The Cabinet...
Source-derived case information.
- Citation
- [2021] KEHC 8101 (KLR)
- Parties
- Applicant: Dr. Richard Arina Odek; Respondent: Cabinet Secretary Ministry of Agriculture, Livestock, Fisheries and Co-operatives; Respondent: Chief Executive Officer, Kenya Veterinary Board; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E001 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Stay
- Outcome
- Application allowed; implementation of Gazette Notice stayed.
- Legal Topics
- Board Appointments, Statutory Powers, Gazette Notices, Separation of Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Richard Arina Odek
Applicant
Cabinet Secretary Ministry of Agriculture, Livestock, Fisheries and Co-operatives
Respondent
Chief Executive Officer, Kenya Veterinary Board
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Stay
Legal Issues
- 1 Whether the Cabinet Secretary had legal authority to revoke the appointments of elected members of the Kenya Veterinary Board before expiry of their term.
- 2 Whether the Gazette Notice revoking the appointments was lawful and valid.
- 3 Whether the role of the Cabinet Secretary is limited to formalizing appointments of elected members.
Ratio Decidendi
The court found that the Cabinet Secretary lacked legal authority to revoke the appointments of the five elected members of the Kenya Veterinary Board before the expiry of their statutory term. The appointments were made pursuant to a lawful election process and gazetted for a fixed term of three years. The Cabinet Secretary's role was limited to formalizing the appointments by gazettement, not to interfere with or terminate the tenure of elected members unless expressly empowered by law. The purported revocation by Gazette Notice was therefore unlawful, and its implementation was stayed pending the hearing and determination of the petition. The application was unopposed by the 1st and...
Court Disposition
Application allowed; implementation of Gazette Notice stayed.
Orders
- Implementation of Gazette Notice No. 14 dated 6th January 2021 is stayed until the Petition is heard and determined.
- The Cabinet Secretary shall await the results of the elections and gazette the persons elected.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
PETITION NO. E001 OF 2021
DR. RICHARD ARINA ODEK............................................PETITIONER
VERSUS
THE CS MINISTRY OF AGRICULTRE,
LIVESTOCK, FISHERIES &
CO-OPERATIVES............................................................1ST RESPONDENT
THE CHIEF EXECUTIVE OFFICER
KENYA VETERINARY BOARD.................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL............................3RD RESPONDENT
RULING
On 6th January 2021, the 1st Respondent, THE CABINET SECRETARY MINISTRY OF AGRICULTURE, LIVESTOCK, FISHERIES AND CO-OPERATIVEScaused to be published a Gazette Notice revoking the appointments of the following persons;
a) Dr. Christopher H. Wanga (Chairman);
b) Dr. Jafred M.A. Kitaa (Vice-Chairman);
c) Mr. Paul Kariuki Ndungu;
d) Mr. Benson Oduor Ameda; and
e) Mr. Queereenuse Pacho,
as members of the Board of Directors of the Kenya Veterinary Board.
1. The five named persons were elected by the VeterinarySurgeons and Veterinary Professionals, respectively.
2. Following their said elections, the five persons were appointed to the Board of Directors of the Kenya Veterinary Board, under a Gazette Notice No. 2609of 20th March 2018.
3. The said Gazette Notice was issued under the hand of Mr. MWANGI KIUNJURI, who was the Cabinet Secretary for Agriculture and Irrigation, at the material time.
4. The Gazette Notice expressly stated that the persons appointed, would be members of the Kenya Veterinary Board for a period of three (3) years.
5. It is the Petitioner’s case that the 1st Respondent had no discretionary powers or legal authority to determine the composition or the term of service of the members who had been appointed to the Board following their election.
6. The Petitioner’s position was that the 1st Respondent’s role was merely to formalize the appointment of the elected members of the Board, through the publication in the Kenya Gazette.
7. In the circumstances, the Petitioner hopes to persuade the court that the 1st Respondent had acted unlawfully by purporting to exercise authority which he did not have.
8. The 2nd Respondent, The CHIEF EXECUTIVE OFFICER, KENYA VETERINARY BOARDfiled a Replying Affidavit on 16th February 2021.
9. He deponed that all cadres of veterinarians were allowed to seek election to leadership and to participate in the electoral process.
10. The 2nd Respondent said that after elections are conducted by either the Veterinary Surgeons or the Veterinary Para-Professionals, the names of those who had been duly elected were forwarded to the Cabinet Secretary for appointment to the Board of Directors.
11. As the 3 Year Term comes to an end on 20th March 2020, pursuant to the Gazette Notice dated 20th March 2018, the only way that the Cabinet Secretary could terminate the appointment of the elected members of the Board prior to the effluxion of the time is if he could satisfy the Court that the law had bestowed such powers and authority upon him.
12. On a prima facie basis, I find and hold that the Cabinet Secretary does not have legal authority to revoke the appointment of the Board members, who are appointed to the Board by virtue of the elective positions they hold.
13. It therefore follows that, on a prima facie basis, the Cabinet Secretary lacked authority to revoke the appointments of the five (5) members of the Board.
14. Accordingly, the implementation of the Gazette Notice No. 14 dated 6th January 2021, and which was published on 8th January 2021, is hereby stayed until the Petition is heard and determined.
15. The Cabinet Secretary shall await the result which emerge from the elections, and shall then gazette the persons who will have been elected.
16. In my considered opinion, the orders granted herein shall not prejudice the Respondents at all. If anything, I believe that the strict compliance with the letter and spirit of the law is essential in order to uphold good governance, integrity, transparency and accountability as espoused by Article 10 (1)of the Constitution of the Republic of Kenya.
17. For the record, neither the 1st Respondent nor the 3rd Respondent filed any Replying Affidavit or other answer to the application. In the event, the said application was uncontroverted.
18. I therefore allow the application as prayed.
DATED, SIGNED and DELIVERED at KISUMU This 16th day of March 2021
FRED A. OCHIENG
JUDGE