The rejection of a nominee to a county executive committee for lack of experience and relation to another nominee does not violate the Constitution

Moses Kiprotich Langat v Kericho County Assembly Committee on Appointments & 2 others [2020] eKLR

Petition No. 28 of 2019

Supreme Court of Kenya

PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

August 6, 2020

Reported by Kakai Toili

Labour Law – employment – public appointments – procedure to be followed – where an applicant sought to be appointed a county executive committee member -  where the county assembly rejected the nominee’s name for appointment to the county executive committee for lack of experience and for being related to another nominee - what were the factors to be considered in making county government appointments – whether the decision of the county assembly to reject the nominee violated the Constitution - Public Appointments Act, 2011, sections 3, 5, 7 and 10; County Governments Act, 2012, section 35.

Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – where an appellant challenged the decision of a county assembly to reject his name for appointment to the county executive committee for lack of experience and being related to another nominee - whether the Supreme Court had the jurisdiction to determine the appeal – Constitution of Kenya, 2010, articles 160(1) and 163(4); Supreme Court Act, 2011, sections 15(1) and (2).

Brief facts

The County Government of Kericho by way of an advertisement invited suitable candidates to apply for various positions in the county executive committee. Following the advertisement, the appellant applied to be the member of the education, culture and social services committee. He was successful and his name, alongside nine others, was submitted to the 3^rd respondent by the Governor of Kericho County (Governor) for vetting. During the vetting, the appellant’s name was rejected for appointment for two reasons: that he lacked the experience for management of ECDE and village polytechnics and that he was related to a nominee for finance and economic planning. Aggrieved by the decision, the appellant filed a petition before the Employment and Labour Relations Court terming the reasons for his rejection as unconstitutional.

The appellant sought for among others a declaration that the proceedings of the 3^rd respondent (county assembly) rejecting his appointment was void and prohibitory orders against the Governor from presenting to the Speaker of the county assembly any fresh names of nominees for approval by the county assembly for appointment as members of Kericho County Executive Committee. The Employment and Labour Relations Court granted all the prayers sought by the appellant. Dissatisfied by that decision, the respondents filed an appeal at the Court of Appeal which allowed the appeal and set aside the Employment and Labour Relations Court orders. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal.

Issues

1. Whether the Supreme Court had the jurisdiction to determine an appeal challenging the decision of a county assembly to reject the name of a nominee to a county executive committee?
2. What was the procedure to be followed in making public appointments?
3. What were the factors to be considered in making county government appointments?
4. Whether the decision of the County Assembly of Kericho to reject a nominee to the county executive committee for lack of experience and relation to another nominee violated the Constitution.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163

(4) Appeals shall lie from the Court of Appeal to the Supreme Court –

1. As of right in any case involving the interpretation or application of this Constitution; and
2. In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)

 (5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Supreme Court Act, 2011

Section 15 - Appeals to be by leave

1. Appeals to the Supreme Court shall be heard only with the leave of the Court.
2. Subsection (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.

Held

1. The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application, and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution. The issue of the constitutionality of the respondents’ decision in rejecting the name of the appellant in the County Executive Committee was consistent from the Employment and Labour Relations Court to the Court of Appeal and to the court. Consequently, the appeal fell within the ambit of article 163(4)(a) of the Constitution.
2. Article 176(2) of the Constitution mandated every county government to decentralize its functions and the provision of its services to the extent that it was efficient and practicable to do so. County executive committees thus comprised members appointed by the county governor, with the approval of the assembly, and who were not members of the assembly as provided for under article 179(2)(b) of the Constitution.
3. The procedure for public appointments was governed by the Public Appointments Act No. 33 of 2011. Section 3 of the Public Appointments Act provided that all appointments under the Constitution or any other law for which the approval of Parliament was required would not be made unless the appointment was approved or deemed to have been approved by Parliament. Section 5 of the Act set the procedure for nominating a candidate for a public appointment, upon nomination, under section 5, a candidate whose position required approval by Parliament had to undergo the approval hearing as set out in section 6 of the Act. Accordingly, section 7 of the Act provided that an approval hearing had to focus on a candidate’s academic credentials, professional training and experience, personal integrity and background. When approving a candidate, the House of Parliament had to be guided by the procedure used to arrive at the nominee; any constitutional or statutory requirements to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities met the needs of the body to which nomination was being made.
4. On rejection of a nomination, section 10 of the Public Appointments Act provided that where the nomination of a candidate was rejected by Parliament, the appointing authority could submit to the relevant House the name of another candidate, and the procedure for approval was specified in the Act. In the context of county government appointments under section 35 of the County Governments Act No. 17 of 2012, the governor should, when nominating members of the executive committee, ensure that to the fullest extent possible, the composition of the executive committee reflected the community and cultural diversity of the county; and took into account the principles of affirmative action as provided for in the Constitution. The county assembly was mandated to ensure that all nominations for appointments to the executive committee took into account two thirds-gender rule, representation of minorities, marginalized groups and communities and community and cultural diversity recognized in Kenya among other considerations.
5. A county assembly could reject the name of a nominee if it failed the test set out in section 35 of the County Governments Act and the provisions of the Public Appointments Act. The appellant did not fault the vetting process (which the constitutional and statutory threshold required) but the outcome. There was no reason to depart from the Court of Appeal’s finding.
6. Separation of powers was an integral principle in the Constitution: for instance, chapter 8 was devoted to the Legislature; chapter 9 to the Executive and chapter 10 on the Judiciary provided (article 160(1)) that: in the exercise of judicial authority, the Judiciary as constituted by article 161 was subject only to the Constitution and the law and was not to be subject to the control or direction of any person or authority. If courts decided only those cases that met certain justiciability requirements, they respected the spheres of their co-equal branches and minimized the troubling aspects of counter-majoritarian judicial review in a democratic society by maintaining a duly limited place in government.
7.  The respondent’s decision to reject the appellant’s appointment did not flout any constitutional or statutory provisions. There was no reason to interfere with the manner in which the county assembly exercised its powers on the issue. 

Appeal dismissed; each party to bear their own costs of appeal.