PETITION NO. 236 OF 2018
IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27(1), 27(3), 27(8), 131(2),
132(2)(f), 159, 165, 232, 233, 234, 249, 258, 259AND 260 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE PUBLIC OFFICERS ETHICS ACT NO. 4 OF 2003 AND THE PUBLIC SERVICES
(VALUES AND PRINCIPLES) ACT NO. 1A OF 2015
AND
IN THE MATTER OF THE APPOINTMENT BY THE PRESIDENT AND CABINET SECRETARIES OF THE
REPUBLIC OF KENYA OF PERSONS TO VARIOUS OFFICES IN THE PUBLIC SERVICE
BETWEEN
KATIBA INSTITUTE………………………………………………………1ST PETITIONER
AFRICA CENTRE FOR OPEN GOVERNANCE…………….2ND PETITIONER
-VERSUS-
THE HON. ATTORNEY GENERAL………………………………1ST RESPONDENT
THE PUBLIC SERVICE COMMISSION……………………….2ND RESPONDENT
AND
JULIUS WAWERU KARANGI & 128 OTHERS…….INTERESTED PARTIES
JUDGMENT
[1] Katiba Institute and Centre for Open Governance, (herein after The Petitioners), brought a Petition dated 29th June, 2018 against the Hon. Attorney General and the Public Service Commission, (herein the Respondents). The Petition challenges the appointment of the 129 Interested Parties named in the petition, to positions of either chairpersons or members of boards in Parastatals and State Corporations.
[2] The petition seeks the following reliefs:
- A declaration that appointments to state corporations and agencies are appointments in the public service and must
adhere to Articles 10(2)(c), 27(3) and 232(2)(g)-(i) of the Constitution. - A declaration that Article 234(2)(a)(ii) of the Constitution confers the Public Service Commission and no other person or body with the power to make appointments for chairpersons and board members of state corporations and agencies save for those expressly excluded by Article 234(3) and (4) of the Constitution.
- A declaration that the appointments to various state corporations and agencies by the President and the Cabinet
Secretaries of 5th and 7th June, 2018 which are notified in Kenya Gazette Notice Numbers 5569 to 5621 and 5622 to 5623 are unconstitutional for breach of Articles 2(2), 10(2)(c), 27(3), 232(2)(g)-(i) and 234(2)(a)(ii) of the Constitution and are hence invalid. - A declaration that all those Sections enumerated under paragraph 16 of the petition are unconstitutional because they
violate Articles 2(2), 10(2)(c), 27(3), 232(2)(g)-(i) and 234(2)(a)(ii) of the Constitution. - A declaration that the Public Service Commission is in dereliction of its constitutional duty for failing to undertake the
appointments to various positions of chairpersons and board members of state corporations and agencies and for
acquiescing to the action of the President and Cabinet Secretaries making the appointments enumerated under paragraph
12 of the petition and hence it has violated Articles 2(1), 3(1), 10, 234(2)(a)(ii) & (d), and 249 of the Constitution. - An order quashing all those appointments notified in Kenya Gazette Notice Numbers 5569 to 5621 of June 5th, 2018 and Numbers 5622 to 5623 of June 7th, 2018.
- An order that those provisions enumerated under paragraph 16 of the petition are unconstitutional and void.
- Costs of the petition.
- Any such other orders as this Honourable Court shall deem fit.
[3] The facts leading to the present petition, are that on the 5th and 7th June, 2018, the President and Cabinet Secretaries appointed the Interested Parties vide Gazette Notice Nos. 5569 to 5621 of June 5th, 2018 and 5622 to 5623 of June 7th, 2018, to various positions either as chairpersons or members of boards of Parastatals and State Corporations.
[4] The Petitioners argue that there is no record that there were any advertisements in respect of vacancies to the positions, or any record to indicate the criteria applied for the appointments or qualifications of the individuals selected to those positions.
[5] The Petitioners further argue that there is no known record that the 2nd Respondent was in any way involved in the selection and appointment of those individuals. It is the Petitioners’ case that the provisions under which the appointments were made are unconstitutional. The impugned provisions are:
a. Sections 6(d)(iii) and 8 of the National Social Security Fund Act No. 45 of 2013;b. Section 16 (2)(g) of the Investment Promotion Act No. 6 of 2004;
c. Section 6(1)(e) of the State Corporation Act Cap. 446 Laws of Kenya;
d. Paragraph 4(1)(e) of the Kenya Leather Development Council Order 2011; (Legal Notice No. 114 of 2011)
e. Section 10(1)(e) of the Environmental Management and Co-ordination Act (No. 8 of 1999);
f. Section 9(1) of the Forest Conservation and Management Act (No. 34 of 2016);
g. Section 6(1) of the State Corporation Act Cap. 446 Laws of Kenya;
h. Paragraph 6(1)(g) of the Kenya Water Towers Agency Order, 2012;
i. Paragraph 2(h) of the Moi Teaching and Referral Hospital Board Order 1998;
j. Section 9(1) of the Science, Technology and Innovation Act (No. 28 of 2013);
k. Section 6(2)(a) of the Cancer Prevention and Control Act (No. 15 of 2012);
l. Section 9(1) of the Kenya Medical Training College Act (Cap. 261) Laws of Kenya;
m. Paragraph 5(1(a))(f) of the Kenya Animal Genetic Resource Centre Order 2011; (Legal Notice 110 of 2011)
n. Sections 3(2)(b) of the National Cereals and Produce Board Act Cap. 338;