[2023] KEHC 23731 (KLR)

Tum v Deputy County Commissioner Kericho East Sub County & 2 others (Constitutional Petition 007 of 2023) [2023] KEHC 23731 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23731 (KLR)

Republic of Kenya

In the High Court at Kericho

Constitutional Petition 007 of 2023

JK Sergon, J

October 12, 2023

IN THE MATTER OF: ARTICLE 2, 3 (1) , 10, 22 (1) ( 2) , 23, 48, 50 (1) , 165, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF: ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS IN THE BILL OF RIGHTS UNDER ARTICLE 22 (1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: BREACH OF FUNDAMENTAL RIGHTS AND FREEDOMS ESPECIALLY ARTICLES 2, 3 (1), 10, 47, 55, 232, 259 AND THE CONSTITUTION OF KENYA AND IN THE MATTER OF: CONTRAVENTION OF SECTION 3, 4, 5 & 7 OF THE FAIR ADMINISTRATIVE ACTIONS ACT 2015 AND OTHER PROVISIONS THEREOF AND IN THE MATTER OF: THE UNITED NATION UNIVERSAL DECLARATION OF HUMAN RIGHTS AND IN THE MATTER OF: AFRICAN CHARTER ON PEOPLE AND HUMAN RIGHTS AND IN THE MATTER OF: (RE)-ADVERTISEMENT OF THE CHIEF II CSG 12, KAPSAOS LOCATION

Between

Victor Kipngeno Tum

Petitioner

and

Deputy County Commissioner Kericho East Sub County

1st Respondent

Ministry Of Interior And National Administration

2nd Respondent

Attorney General

3rd Respondent

Judgment

1. The petitioner herein has moved to court by way of a Petition seeking;a.A Declaration be; and is hereby issued, that the impugned circular cum advertisement dated May 19, 2023 by the 1st Respondent for the position of Chief II for Kapsaos Location, unjustifiably violated the fundamental right and freedom on equality and freedom from discrimination.b.A Declaration be and is hereby issued that the imposition of the mandatory age requirement of above 35 years without any reasonable and justifiable limitation amounted to unfair administrative actionc.An order of permanent injunction be and is hereby issued, restraining the 1st and 2nd Respondent from imposing the mandatory age requirement for the position of Chiefs and/or Assistant Chiefs.d.Consequently, upon the above prayers hereinabove. An order compelling the 1st Respondent to forthwith restart the recruitment process devoid of the age limit.e.This Honorable Court be pleased to issue any other or further remedy that the Honourable court shall deem fit to grant.f.Costs of this application be borne by the Respondents.

2. A brief factual background of the petition herein is that on 1May 9, 2023 vide a circular letter of Ref No: F8 Vol XIV/19, the Ministry of Interior and Coordination of National Government, the 2nd Respondent herein, through the office of the 1st Respondent the Deputy County Commissioner placed a re-advertisement for the Position of Chief II, for Kapsaos Location in Kapsaos Division with various requirements for appointment for position of Chief II to wit a mandatory requirement of applicants not being not less than thirty five (35) years of age which according to the petitioner is discriminatory to the youths who are desirous in applying for the position of Chief II in Kapsaos Location.

3. The petitioner contended that the administrative decision to limit applicants on the grounds of age without any reasonable or justifiable cause offended the doctrines or irrationality, illegality, unreasonableness, proportionality and oppressiveness. The petitioner therefore challenged the impugned mandatory requirement for its outright discrimination on the basis of age, its manifest unconstitutionality, unreasonableness, irrationality and unlawfulness.

4. The Petition is supported by grounds on the face of it and a supporting affidavit sworn by the petitioner herein Victor Kipngeno Tum in support of the petition and the notice of motion dated June 12, 2023.

5. He avers that unless conservatory orders are issued restraining the 1st Respondent from proceeding with the recruitment process for the position of Chief for Kapsaos Location, the rights of youth remain violated.

6. The Petition is further supported by grounds on the face of it and a supporting affidavit sworn by Edwin Ruto in support of the petition and the notice of motion dated June 12, 2023.

7. He avers that the mandatory requirement of age imposed on the applicants disenfranchises his application thus violating the enjoyment of his constitutional right as youth.

8. The 1st and 2nd Respondent filed a joint replying affidavit which was sworn by Stephen O. Orinde the Deputy County Commissioner Kericho East Sub-County working in the Ministry of Interior and Coordination of National Government.

9. They aver that on May 19, 2023 they placed a re-advertisement for the position of Chief II for Kapsaos Division with set requirements and conceded that neither the Constitution of Kenya 2010 nor any statute prescribes the age requirement applicable to the occupant of the position of Chief II and that the same is stipulated in the human resource manual by the Public Service Commission at they attached a copy of the said manual.

10. They contended that article 234 (2) (g) of the Constitution of Kenya, 2010 provides that the Public Service Commission shall review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officer in the public service and that the rationale behind the decision of the Public Service Commission on the qualifications of the position particularly on age is informed by the nature and magnitude of the work of a chief as guided by the Chief’s Actcap 128, one has to attain a certain level of maturity, wisdom and experience which come with the required age.

11. They cited the case of Nelson Andayi Havi v Law Society of Kenya & 3 Ors[2018] eKLR where the High Court stated that “It is not every differentiation that amounts to discrimination.”

12. They contended that section 5 (4) (b) of the Employment Act, 2007 and article 1 (2) of the International Labour OrganizationDiscrimination (Employment and Occupation) Convention, 1958 provides that it is not discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job and further that age was not the only criterion used to determine the suitability of the applicants for the position, the applicants were also assessed on other important qualifications such as being a resident of the community which as a whole sought to examine the applicants’ understanding of the unique challenges and culture of the community which is necessary for effective service delivery.

13. They faulted the petitioner for seeking conservatory orders yet the petitioner had failed to ably demonstrate a factual basis on which actual prejudice against the petitioner or any other specific person could be deduced in the recruitment process or appointment to the position.

14. The 1 & 2 Respondents therefore sought to have the petition dismissed with costs.

15. I have considered the notice of motion, petition and the joint replying affidavit by the respondents herein and I find that the Petitioner’s claim has not met the threshold of particularity and precision required of a Constitutional Petition.

16. In the case of Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 Ors (2018) eKLR the Court stated as follows: “ It is a principle in constitutional litigation that a party seeking reliefs through a constitutional petition on the basis of violation of the constitution, constitutional rights and fundamental freedoms, the petitioner must plead with a higher degree of precision; show constitutional or fundamental freedoms violated, the manner of violation, the constitutional provision in question or violated and the jurisdictional basis for the litigation (see Anarita Karimi Njeru v Attorney General - (supra)."In Meme v Republic [2004] eKLR, the Court reiterated that where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

17. In the end, I find the instant petition to be without merit. The same is hereby dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH OCTOBER, 2023……………………….J. K. SERGONJUDGEIn the presence of:-C/Assistant – RutohVictor Tum for the Petitioner