Joy Brenda Masinde V Law Society Of Kenya & Another  eKLR
Prescribing additional qualifications for vacant positions outside of those provided by Statute is Illegal
Joy Brenda Masinde v Law Society of Kenya & another
High Court at Nakuru
Petition No 54 of 2015
M A Odero J
November 27, 2015
Reported by Phoebe Ida Ayaya
The petition arose from an advertisement placed by the 1st Respondent in the Daily Nation Newspaper of Thursday August 20th 2015 inviting applications for the position of Secretary/CEO of the Law Society of Kenya. The said advertisement indicated that in order to be appointed an applicant required the following qualifications:-
i. The applicant must be in possession of Bachelor of Laws Degree – it was indicated that an advanced degree would be an added advantage;
ii. The applicant must be an advocate of the High Court of Kenya of not less than ten (10) years standing;
iii. The applicant must be a Certified Public Secretary (CPS) with at least five (5) years standing;
iv. The applicant must have experience and knowledge in management.
The Petitioner who expressed an intention to submit her application for the post of Secretary/CEO, objected to the qualifications set out in the impugned advertisement on the basis that specifically the requirement that an applicant be a CPS of five (5) years standing was unlawful as it was not a qualification for the position of Secretary/CEO provided for by section 26(4) of the Law Society of Kenya Act.
The Petitioner argued that the 1st Respondent had no power to prescribe additional qualifications outside of those provided by statute. The Petitioner finally asserted that the additional requirements were discriminatory towards herself and others like her who did not hold a CPS of five years and violated her rights under article 27 of the Constitution.
Whether the 1st Respondent violated the Petitioners Constitutional rights by not according her a right to fair administrative action by being denied a fair hearing
Whether the 1st Respondent discriminated against the Petitioner by prescribing additional qualifications outside of those provided by statute in a vacant job advertisement
Whether the 1st Respondent was ultra vires the legal statutory provisions in the action of prescribing additional qualifications outside of those provided by statute in a vacant job advertisement
Constitutional law – fundamental rights and freedoms - Enforcement of fundamental Rights and freedoms- right to fair administrative action- limitation of the right to fair administrative action- whether the Petitioner was subjected to any administrative actions by the 1st Respondent for which she was denied a fair hearing –whether she was denied access to justice within the meaning of article 47 - article 47(1) & (2) of the Constitution of Kenya, 2010
Constitutional Law-fundamental rights and freedoms-right against discriminations- whether the Respondents discriminated the Petitioner thus violating their rights under the Constitution of Kenya- whether the Respondents violated the Constitution on obligations relating to fair administrative action- Constitution of Kenya, 2010, article 47
Civil practice and procedure – judicial review – application for orders of certiorari to quash and prohibit the decision and conduct Law Society of Kenya from imposing additional requirements on a job position without a proper legislative framework – duty of the court to exercise its discretion judiciously based on the evidence of sound legal principles when granting judicial review orders – whether in the circumstances the application had merit
Administrative law -Judicial Review-certiorari-application for orders of certiorari to compel the 1st Respondent to comply with the recommendations of Statute - whether the application had merit –
Administrative Law-testing the legality of a statutory office in its exercise of statutory mandate- Whether the 1st Respondent acted unlawfully with respect to the additional requirements of the position of secretary/ceo –powers and limitations of the 1st respondent as a statutory body
Words and Phrases – definition - eligible - fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege or status -Blacks Law Dictionary 9th Edn
Law Society of Kenya Act
The Council’ which is the governing body of the 1st respondent as per section 17(1) of the Act. It is this Council which is vested with the powers under Section 26(2) to appoint the Secretary. Section 26(2) provides:-
“The secretary shall be appointed by the Council through a transparent and competitive recruitment process.
Section 26(4) of the Law Society of Kenya Act provides:-
(4) A person shall be eligible for appointment as the secretary to the society if that person –
a. is an advocate of the High Court of Kenya with at least ten years experience, and
b. meets the requirements of Chapter Six of the Constitution.
Constitution of Kenya, 2010
Article 27(4) and (5)
(4) The state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethic or social origin, colour, age, disability, religion, conscience belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 (No.111
Discrimination is defined in the as follows:-
For the purpose of this convention the term discrimination includes –
a. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
b. such other distinction exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the member concerned after consultation with representative employers’ and workers’ organizations where such exist, and with other appropriate bodies –
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination
The Petitioner was never at any time subjected to any administrative actions by the 1st Respondent for which she was denied a fair hearing neither was she denied access to justice within the meaning of article 47 of the Constitution. These two claims failed to meet the threshold of a constitutional petition. The Petitioner totally failed to articulate the grounds upon which she relied and failed to demonstrate the manner in which these particular rights had been infringed by the actions of the 1st Respondent thus the ground of the petition failed.
The Petitioner claimed that her right to equality and freedom against discrimination under article 27 had been infringed. Adding the extra requirement for appointment as Secretary/CEO the 1st Respondent unlawfully excluded persons who were otherwise qualified from applying for the petition.
Discrimination meant affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description were subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also meant unfair treatment or denial of normal privileges to persons because of their race, age, sex, a failure to treat all persons equally where no reasonable distinction could be found between those favored and those not favored.
Discrimination could be said to have occurred where a person was treated differently from other persons who were in similar positions on the basis of one of the prohibited grounds like race, sex creed etc or due to unfair practice and without any objective and reasonable justification.
In this case the distinction was predicated upon academic qualification. The 1st Respondent argued that in order to properly discharge the functions of Secretary, it was essential that the appointee be a CPS of five years standing. In other words the 1st Respondent being the employer and cognizant of the job description felt that the ideal candidate ought to be a holder of CPS of five years standing. This was a distinction that was based on job preference and/or performance. It was not unreasonable for the 1st Respondent to declare what qualifications they believed an ideal candidate should hold.
In a similar way the impugned advertisement indicated that whilst a Bachelor of Laws Degree remained the minimum requirement an advanced degree would be an added advantage. A statement of preference with regard to the qualification the ideal candidate should possess was unfair or illegitimate. The job market currently was cutthroat. Only the best or best qualified would succeed. This was the reality of competition in a capitalistic society. The mere expression of the preferred qualifications for the ideal candidate did not amount to discrimination under article 27 of the Constitution as it was not premised on any of the grounds stated on or contemplated by article 27(4) nor can the stated preference be said to amount to an illegitimate consideration.
The substance of the Petitioner’s claim was that the 1st Respondent did not have powers under the Law Society of Kenya Act to impose the requirement of CPS 5 years standing on the applicants. The Petitioner was therefore invoking the court’s supervisory jurisdiction over any person or body performing a public function. The 1st Respondent being a statutory body established under article 3 of the Law Society of Kenya Act was subject to the judicial review jurisdiction of this court. The scope of Judicial Review was stated as concerning only the decision-making process and that the court was not required to enquire into the merits of that decision.
In order to succeed in an application for judicial review, the applicant had to show that the decision or act complained of was tainted with illegality, irrationality and procedural impropriety. Illegality was when the decision-making authority committed an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles were instances of illegality.
Irrationality was when there was such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision was usually in defiance of logic and acceptable moral standards. Procedural Impropriety was when there was a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness was non-observance of the Rules of Natural Justice or acted with procedural fairness towards one to be affected by the decision. It also involved failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercised jurisdiction to make a decision.
Section 17 of the Law Society of Kenya Act created ‘The Council’ which was the governing body of the 1st Respondent as per section 17(1) of the Act. It was this Council that was vested with the powers under section 26(2) to appoint the Secretary.
The statute that formed the basis for the qualifications required of the role of the post of Secretary/CEO lists only two (2) such qualifications. Yet in the impugned advertisement dated 20th August 2015 the 1st respondent added a third qualification being that an applicant for the position of secretary/CEO was also to be a CPS holder of five years standing. The use of the word ‘shall’ in section 26(4) made this a mandatory requirement. Section 26(4) stated that in order to be ‘eligible’ for appointment as secretary/CEO an applicant was required to meet only the two stated qualifications. Contrary to the submissions by the 1st Respondent this additional qualification was not expressed to be merely as an ideal qualification in the way that an advanced degree was expressed to be an added advantage. Rather this additional CPS qualification was stated as a mandatory minimum requirement for consideration for the post advertised. Thus a person not in possession of a CPS of five years standing was deemed not eligible to apply. It was therefore a requirement that determined whether or not a person would apply for the position.
Where a body had been established by statute (such as the Law Society of Kenya) then that body was to act in accordance with the powers conferred upon it and could not allocate itself powers even when it felt those powers are necessary to enable it perform its functions. Where a statute donated powers to an authority, the authority ought to ensure that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority.
Consequently, where the law exhaustively provided for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. Courts will not be rubber stamps of the decisions of administrative bodies. However, if Parliament gave great powers to statutory bodies, the courts allowed them to exercise it. The Courts must be vigilant to see that the said bodies exercised those powers in accordance with the law.
The 1st Respondent’s powers as donated by section 26(4) of the Law Society of Kenya Act was to appoint as Secretary/CEO persons who had qualified as for the Act a transparent and competitive recruitment process. The 1st Respondent did not have the power under the Act to determine the minimum qualifications for Secretary/CEO or to set out the threshold of competence or eligibility..
The minimum qualifications were clearly set out in statute. In selecting the ideal candidate out of the pool of interested applicants all of whom possess the minimum statutory qualifications the 1st Respondent were however, at liberty to take into consideration any additional qualification that may give one candidate an edge over the other candidates and proceed to appoint a suitable candidate on the basis of that additional qualification. This would maintain the spirit of the Act and article 73(2)(a) of the Constitution that provided for selection on the basis of personal integrity, competence and suitability as one of the guiding principles of leadership and integrity.
Accordingly in making it a mandatory requirement for appointment as Secretary/CEO, that an applicant must in addition to the requirements set out in section 26(4) be a CPS of not less than five years standing the 1st Respondent acted outside of its statutory mandate. This additional requirement was made ultra vires their powers and was thus quashed.
i. A declaration that the decision by the Respondents to provide additional qualifications for the post of Chief Executive Officer/Secretary of the Law Society of Kenya was against the Law Society of Kenya Act hence ultra vires;
ii. An order of certiorari issued to quash the decision by the Respondents to provide additional qualifications for the post of Chief Executive Officer/Secretary of the Law Society of Kenya and the advertisement dated 20th August 2015.
iii. Costs are awarded to the petitioner
Parties: Masinde v Law Society of Kenya & another  KLR- HCK
Case Number: Petition No 54 of 2015
Coram: M A Odero J
Court Station: High Court at Nakuru
Date of Delivery: November 27, 2015
1. Anarita Karimi Njeru v Attorney General (No 1)  KLR 154 – (Mentioned)
2. Commissioner of Lands v Kunste Hotel Ltd Civil Appeal No 234 of 1995- (Followed)
3. Mungai, Githu & another v Law Society of Kenya & another Petition No 286 of 2014 – (Followed)
4. Pastoli v Kabale District Local Government Council & others  2 EA 300 – (Followed)
5. Waweru, Peter K v Republic Miscellanous Civil Application No 118 of 2004 – (Followed)
1. Constitution of Kenya, 2010 articles 27(4) (5); 47; 48; 73(2) (a) – (Interpreted)
2. Certified Public Secretaries Act (cap 534) seciton 15 – (Interpreted)
3. Law Society of Kenya Act, 2014 (Act No 21 of 2014) sections 17(1); 26(4) – (Interpreted)
Texts & Journals
1. Garner, BA., (Ed) ( 2009) Blacks Law Dictionary St Paul Minnesota: West Group Publishers 9th Edn
1. International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 (No 111) (ILO)
1. Mr Kipkoech for Petitioner
2. Mr Biko for the 1st Respondent