Employment and Labour Relations Court at Nairobi
Robert Muriithi Ndegwa v Minister for Tourism
Robert Muriithi Ndegwa v Minister for Tourism  eKLR
Reported by Lynette A Jakakimba
By a letter of appointment signed between the Chairman of the Kenya Tourist Board and Robert Muriithi Ndegwa (the Petitioner), was appointed to serve as the chief executive officer of the Board. The contract of service was for three years and the Board reserved the right to terminate the contract prematurely depending on the Petitioner’s performance. It further provided that if the Petitioner desired to be reappointed he was to make a written request at least six months before the expiry date of the contract.
The Petitioner in complaince with his contract of service wrote to the Board six months before expiry of his contract for the renewal of the contract. The Board considered the Applicant’s request and subsequently recommended the renewal of the Petitioner’s contract for another three years.
The Chairman of the Board wrote to the Permanent Secretary, Ministry of Tourism conveying the Board’s recommendation in compliance with the directives contained in a Circular by the Permanent Secretary.
By an internal memo, the Permanent Secretary wrote to the Minister for Tourism (the Respondent) drawing the Minister’s attention to the provisions of the circular while at the same time repeating her advice to the Minister to take into account the excellent performance of the Petitioner as a chief executive officer of the Board, for the Minister to reconsider his decision and renew the contract of the Petitioner. The Permanent Secretary however also identified two senior officers including the Corporation Secretary and Head of Legal and Corporate Affairs and the Acting Director of Marketing as possible candidates for appointment to the position of acting chief executive officer of the Board, if the Minister was inclined not to reappoint the Petitioner. The Minister subsequently appointed the acting Director of Marketing as the acting chief executive officer of the Kenya Tourism Board until the position was filled by way of a competitive process or such other direction as the Minister would give from time to time.
i. What was the effect of the Tourism Act on the Petitioner’s contract of service and in particular the renewal clause?
ii. What was the legitimacy and effect of the circular on renewal of contracts of service for chief executive officers of boards of state corporations?
iii. What were the constitutional and statutory standards for appointment of the Kenya Tourist Board’s chief executive officer?
iv. Whether the Minister for Tourism was vested with authority to appointment an acting chief executive officer of the Board.
v. Whether the renewal of the contract of service of the Petitioner would undermine or derogate from any constitutional or statutory provisions governing recruitment, appointment, promotion or retention in public service.
vi. Whether the failure to renew the Petitioner’s appointment as chief executive officer of the Kenya Tourism Board for no reasonable cause and as recommended by the Board of Directors, and the Head of Civil Service was unfair, unlawful and constituted breach of the Petitioner’s constitutional rights to fair labour practices and fair administrative action.
vii. Whether the position of chief executive officer of a public body was a public office subject to provisions of articles article 10 of the Constitution prescribing democracy and participation of the people, article 73 on responsibilities of leadership, article 75 on conduct of public officers and article 77 on restriction on activities of state officers.
Constitutional Law – public office-terms of service of public officer- renewal of contract of servicewhat were the constitutional and statutory standards for appointment of the Kenya Tourist Board’s chief executive officer- what was the effect of the Tourism Act on the Petitioner’s contract of service and in particular the renewal clause- whether the renewal of the contract would undermine or derogate from any constitutional or statutory provisions governing recruitment, appointment, promotion or retention in public service-Tourism Act section 37(3)-Constitution of Kenya, 2010
article 232 and 236
Constitutional Law-executive-cabinet-exercise and control of executive power- whether the Minister for Tourism was vested with authority to appointment an acting chief executive officer of the Board- Constitution of Kenya, 2010 article 153 and 154
Constitutional Law– public office– appointment to public office- appointment of chief executive officers to public bodies-failure by the Minister for Tourism to renew the Kenya Tourist Board’s chief executive officers appointment –whether the position of chief executive officer of a public body was a public office subject to provisions of articles articles 10 of the Constitution prescribing democracy and participation of the people, article 73 on responsibilities of leadership, article 75 on conduct of public officers and article 77 on restriction on activities of state officers- Constitution of Kenya, 2010 articles 10,73,75,77
Constitutional Law- fundamental rights and freedoms-right to fair adminstrative action-whether the failure to renew the Petitioner’s appointment as chief executive officer of the Kenya Tourism Board for no reasonable cause and as recommended by the Board of Directors, and the Head of Civil Service was unfair, unlawful and constituted breach of the Petitioner’s constitutional rights to fair labour practices and fair administrative action-Constitution of Kenya, 2010 article 47
(1) The Minister shall, in consultation with the Board of Directors and subject to subsection
(2), through a competitive process, appoint a person to be the Chief Executive Officer of the Tourism Board.
(2) A person shall not be qualified for appointment as the Chief Executive Officer under subsection
(1) unless that person has an advanced degree in marketing, business administration or related discipline and has at least ten years’ experience at senior management level in tourism or hospitality or related sector.
(3) The Chief Executive Officer shall hold office for a term of three years but shall be eligible for
re-appointment for one further term of three years.
(4) The Board of Directors may appoint such officers and other staff as may be necessary for the proper and effective performance of the functions of the Tourism Board.
(1) The rights, assets and liabilities accrued in respect of the properties vested in the Kenya Utalii College, the Kenya Tourist Board, the Kenyatta International Conference Centre, the Kenya Tourist Development Corporation and the Catering and Tourism Development Levy Trustees established by the Acts repealed by section 124, or by any other legal instrument in force immediately before the commencement of this Act, which shall cease to have effect upon the
commencement of this Act (in this Part referred to as “the former agencies”) shall, by virtue of this subsection be transferred, vested in, imposed or be enforceable against the respective tourism agencies established under this Act.
(2) The persons employed by the former agencies shall be transferred to the respective tourism agencies established under this Act.
(3) Any proceedings taken by or against the former agencies immediately before the commencement
of this Act may be continued by or against them by the respective tourism agencies established under this Act.
(4) A contract subsisting between the former agencies and another person before the commencement of this Act shall subsist between the respective tourism agencies established under this Act and that person.
(5) Any licence or permit issued or granted by the former agencies and in force immediately before the commencement of this Act shall, with the approval of the Minister, remain in force for the unexpired period and shall be deemed to have been granted or issued under the provisions of this Act.
Constitution of Kenya, 2010
(2 ) The national values and principles of governance include––
(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and
(d) sustainable development
(1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.
(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by—
(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.
(1) A State officer shall behave, whether in public and official life, in private life, or in association
with other persons, in a manner that avoids—
(a) any conflict between personal interests and public or official duties;
(b) compromising any public or official interest in favour of a personal interest; or
(c) demeaning the office the officer holds.
(2) A person who contravenes clause (1), or article 76, 77 or 78 (2)—
(a) shall be subject to the applicable disciplinary procedure for the relevant office; and
(b) may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed
or otherwise removed from office.
(3) A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.
(1) A full-time State officer shall not participate in any other gainful employment.
(2) Any appointed State officer shall not hold office in a political party.
(3) A retired State officer who is receiving a pension from public funds shall not hold more than
two concurrent remunerative positions as chairperson, director or employee of—
(a) a company owned or controlled by the State; or
(b) a State organ.
(4) A retired State officer shall not receive remuneration from public funds other than as
contemplated in clause (3).
(1) A decision by the Cabinet shall be in writing.
(2) Cabinet Secretaries are accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions.
(3) A Cabinet Secretary shall attend before a committee of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the
Cabinet Secretary is responsible.
(4) Cabinet Secretaries shall—
(a) act in accordance with this Constitution; and
(b) provide Parliament with full and regular reports concerning matters under their control.
(1) There is established the office of Secretary to the Cabinet, which is an office in the public service.
(2) The Secretary to the Cabinet shall—
(a) be nominated and, with the approval of the National Assembly, appointed by the President; and
(b) may be dismissed by the President.
(3) The Secretary to the Cabinet shall—
(a) have charge of the Cabinet office;
(b) be responsible, subject to the directions of the Cabinet, for arranging the business, and keeping the minutes, of the Cabinet;
(c) convey the decisions of the Cabinet to the appropriate persons or authorities; and
(d) have other functions as directed by the Cabinet.
(4) The Secretary to the Cabinet may resign from office by giving notice, in writing, to the President.
(1) The values and principles of public service include—
(a) high standards of professional ethics;
(b) efficient, effective and economic use of resources;
(c) responsive, prompt, effective, impartial and equitable provision of services;
(d) involvement of the people in the process of policy making;
(e) accountability for administrative acts;
(f) transparency and provision to the public of timely, accurate information;
(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) all State organs in both levels of government; and
(b) all State corporations.
(3) Parliament shall enact legislation to give full effect to this Article.
A public officer shall not be—
(a) victimised or discriminated against for having performed the functions of office in accordance
with this Constitution or any other law; or
(b) dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action
without due process of law.
1. The Petitioner in compliance with his contract of service wrote to the Board seeking renewal of his appointment and the Board evaluated the Petitioner as agreed in the contract and found him suitable for the renewal of the contract. The evaluation for renewal needed to be signed by all members of the evaluation committee and not only the Chairman of the Board. However it was sufficient for the Chairman to sign and authenticate the evaluation as the evaluation form
provided only for the Chairman’s signature and it was not disputed that the full Board approved the evaluation.
2. It was not disputed that at the time the Tourism Act, 2012 came into force the Petitioner’s contract of service was subsisting. Under section 123(1) of the Tourism Act, the rights, assets and liabilities in respect of the properties of the Kenya Tourist Board were transferred, vested, imposed and enforceable against the Kenya Tourism Board established under the Act. Further, under section 123(2) the persons employed by the former Kenya Tourist Board were transferred to the Kenya Tourism Board established under the Act. The Petitioner was one such employee of the Board that was so transferred and his contract of service and its provisions remained unbroken and only subject to the express provisions of the Act.
3. On the effective date of the Tourism Act, the Board had an accrued contractual obligation and right to renew the contract of the Petitioner subject to compliance with the terms of the contact.
The Respondent had not pleaded or submitted that the Petitioner lacked the qualifications set out in the Act. The main issue was the manner in which the Act impacted upon the Petitioner’s on-going process of the renewal of the contract of service.
4. The ongoing renewal process as provided for in the contract was protected under subsection 37(3) of the Tourism Act and the renewal clause was not inconsistent with the provisions of the Act. All that the Act did was to codify in the legislation the contractual renewal term. The Act and the contract were not in any conflict and if any conflict were to exist, the provisions of the Act would have superseded the contract but with the Petitioner’s liberty to pursue his
5. It was the opinion of the Court that the circular on renewal of the contracts of service for chief executive officers of the boards for state corporations issued by the Secretary to the Cabinet was founded in the constitutional executive powers of the state. The circular had to be construed within the framework of the constitutional provisions of the Constitution of Kenya, 2010.
The office of the Secretary to the Cabinet was provided for in article 154 of the Constitution. It was within the scope of the performance of the constitutional duties that the Secretary to the Cabinet must have issued the circular in issue. In issuing such circulars the Secretary was communicating the decisions of the Cabinet.
6. Ministerial decision making, responsibility and accountability for the members of the Cabinet were provided for in sub-article 153 of the Constitution. It provided that members of the Cabinet, like the Respondent, were accountable individually and collectively to the President for the exercise of their powers and the performance of their functions. The Respondent was bound by the provisions of the circular and any dissatisfaction or reservations he could entertain about the circular would be best dealt with in the meetings of the Cabinet and until altered one way
or the other, the Respondent was bound to comply by reason of the doctrines of collective ownership and responsibility of the cabinet.
7. Although the circular was merely administrative and subject to the law it howver did not contravene any legislative or constitutional provisions. Subsection 37(3) of the Tourism Act provided that the chief executive officer would hold office for a term of three years but would be eligible for reappointment for one term of three years. The Act did not prescribe the step by step procedure to be followed in the event of undertaking the renewal. Whatever the circular then did was to provide for that process to achieve an objective criterion for the renewal. The circular shared out the power to renew the contract of a chief executive officer between the respective boards and the concerned ministers. It also made the process ascertainable on the part of the affected officer, prescribed performance evaluation as the basis of the renewal and spelt out the management of the succession during the renewal and especially if the renewal
was to be denied.
8. Section 22 of the Public Officer Ethics Act, 2003 provided that public officers would practice and promote the principle that public officers were selected on the basis of integrity, competence and suitability or elected in fair elections. In the instant case, the Petitioner was recruited competitively and it was not said that he lacked qualifications. There would be no suitability or merit in public employment in the event of presence of bribery, cronyism, nepotism, tribalism, and in absence of qualifications, competence, competition, integrity and respect for inclusion and diversity. The Petitioner’s initial appointment had not been shown to have offended any of the salient ingredients of a suitable and meritorious appointment. Further the Petitioner’s performance for the initial three years had not been shown to have breached any
of the constitutional values and principles of public service.
9. Article 47 of the Constitution entitled the Petitioner to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Further, for any adverse decision by the
Respondent, the Petitioner was entitled to receive written reasons from the Respondent for the refusal to renew the contract. Despite making a unilateral decision not to renew the contract, the Respondent failed to convey his position and the reasons before and after the due date for the renewal thereby in contravention of the article 47.
10. The failure to renew the Petitioner’s contract amounted to victimization for having performed the functions of office in accordance with the values and principles of public service provided for in article 232 of the Constitution. Further the refusal to renew the Petitioner’s contract also amounted to the Respondent’s attempt to remove the Petitioner from public office without due process of law. The Respondent’s actions and omissions did not only contravene article 236 of the Constitution that protected public officers, but also amounted to unfair labour practices as
protected in article 41 of the Constitution.
11. It was the Court’s considered opinion that an appointment took place in circumstances where the employee was entitled to the appointment by reason of the employer’s conduct. In the instant case, the Petitioner was entitled to deem the contract renewed in view of the provisions of the circular, failure of the Respondent to convey his refusal to renew and the entitlement to renew as per the terms of the contract. In the employment relationship there existed a reciprocal duty of cooperation and the employer must respect express provisions of the contract, the personal
dignity of the employee and the legitimate expectation that consultative framework that underpin the relationship shall be respected.
12. The exercise of any ministerial function was constitutionally chained to statutory provisions and every ministerial decision had to point to the enabling statutory source or authority. Any ministerial decision that was not rooted in such statutory source or authority would be null and void. Under subsection 37(1) of the Tourism Act, the Respondent was vested with the authority to appoint the Board’s chief executive officer and not the acting chief executive officer. However, Subsection 37(4) authorized the Board of Directors to appoint such officers and other staff of the Board as would be necessary for the proper and effective performance of the functions of the Board. Thus if an acting chief executive officer were to be appointed, the authority to appoint would vest in the Board which was vested with the statutory authority to do so and not the Minister.
Judgment entered for the Petitioner against the Respondent for
a) a declaration that the Respondent’s actions in failing to renew the Petitioner’s contract as
chief executive officer of the Kenya Tourism Board for no reasonable cause or at all and as
recommended by the Board of Directors, and the Head of Civil Service was unfair, unlawful
and constituted breach of the Petitioner’s constitutional rights to fair labour practices and fair
b) an order compelling the Respondent to renew the Petitioner’s term for a further term of three
years as provided at section 37(3) of the Tourism Act No 28 of 2011 and other enabling provisions
of law; or alternatively, an order that the Petitioner’s contract of service was constructively
renewed for three years with effect from 18/10/2012;
c) an order restraining the Respondent from appointing any person to act in the office of the chief
executive officer of the Kenya Tourism Board; and
d) the Respondent to pay costs of the cause.
None referred to
1. Constitution of Kenya, 2010 articles 2, 3, 10, 41, 47, 73, 75, 77, 132(3); 154(1)(2)(3)(c)(d)(4);
232; 236 - (Interpreted)
2. Tourism Act, 2011 (Act No 28 of 2011) sectionn 27(1)(c); 37(1)(2)(3)(4) and 123(2) - (Interpreted)
3. Public Officer Ethics Act, (cap 183) section 22 - (Interpreted)
4. Industrial Court Act, 2011 (Act No 20 of 2011) section 12(3)(viii) - (Interpreted)