(i) Whether appointment of Kitui Chief Officers & County Executive Committee Members (CEC) by the 1st Respondent violated the Constitution of Kenya and Statutory requirements.
38.The petitioner is challenging the appointment of the cited officers to the County Government of Kitui on grounds that the appointments were done without adherence to the laid down procedures in that the process was not transparent, and competitive because unqualified persons ended up being appointed.
39.It is now a requirement under the constitution that state organs, state officers and in all their decisions, or activities, must reflect the national values and principles of governance stipulated under Article 10 of the Constitution of Kenya 2010. The Article States;
40.It is therefore, imperative that any state officer/public officer must adhere to the above guidelines if they do not want to run afoul of the constitution. Before I delve on or whether the impugned appointments infringed the Constitution, it is important to first look into the process of appointments and check out if the same was done in accordance with the relevant statutes.
41.The process of appointing County Chief Officers is provided for under Section 45 of the County Government Act, No. 17 of 2012. It provides as follows: -
42.The process of appointment of County Chief Officers entails involvement of the County Public Service Board which identifies suitable candidates through competitive sourcing, and makes recommendations to the governor, the nominees can however only be appointed by the Governor upon approval by the County Assembly.
43.The Petitioner avers that the Governor appointed the 2nd 3rd and 4th Interested parties as Chief Officers in the Ministry of Lands, Infrastructure, Housing and Urban Development on 20th September 2019, Ministry of Lands, Infrastructure, Housing and Urban Development on 21st January 2020 and Ministry of Environment and Natural Resources on 29th July 2020 respectively.
44.Section 45 of the County Governments Act speaks to the appointment of a Chief Officer to the respective county department, it is not quite clear why two Chief Officers were appointed in acting capacity to the Ministry of Lands, Infrastructure, Housing and Urban Development within a span of four months. It is not clear whether one replaced the other or they were both holding the same position. That however is neither here or there what is important is if they were properly appointed.
45.In his Affidavit sworn on 20th August, 2020, the County Secretary Mr. Joshua K. Chepchieng has averred that he has powers in his capacity to designate officers in an acting capacity pending recruitment. The Powers/functions of a County Secretary provided for under Section 44 (3) of the County Government Act however does not seem grant him such powers. The Section provides;The County Secretary in respect to appointment of County Officers and County Executive Committees Members is only required to convey the decisions to recommend appointments to the County Assembly for purposes of vetting/approval or rejection.
46.The 1st, 2nd and 5th Respondent’s as well as the 1st - 4th Interested Parties assertion is that the Chief Officers mentioned above were appointed in acting capacity and that the County Secretary had the power to make the appointment, (he was indeed the one who signed the letters of appointment) but as however as I have observed above the law does not grant the County Secretary power to make such appointments. Furthermore, in respect to other County Officers Section 59 (1) of the County Governments Act provides that it is the County Public Service Board that has the power to make appointments of persons to the County Public Service specifically. The statute provides;The County Secretary or anyone for that matter cannot bypass the County Service Board when making appointments whether the appointments are temporary or not. That function is reserved to another body as stipulated above.
47.The Respondents (1, 2 & 5) claim that the appointments were temporary or that the appointed officers were engaged only on acting capacity but the reading of the above provisions clearly shows that there is not provisions for appointment of the cited officers in acting capacity. The County Secretary therefore, had no room/latitude or power in law in his capacity as the County Secretary to make such substantive appointments such as the ones he purported to make. The appointed officers occupy substantive offices and discharge substantive duties. Where one disregards clear provisions of the law there is no place to hide.
48.There are simply no provisions in law that delegates powers granted to the County Assembly (vetting and approving) to the County Secretary. The County Secretary states that they acted within Article 232 of the Constitution but looking at Article, it is evident that the 1st and 2nd Respondent actually did contrary to the values and principles enunciated therein. They were required to respect inter alia principles of equality in employment, transparency, accountability and ensure there is no discrimination in appointments or promotion.
49.In effect the letters of appointments signed by the office of the County Secretary (Dr. Joshua Chepchieng) purporting to appoint the officers to the office of Chief Officers and Municipal Manager of Kitui County were illegalities null and void. The said officer (County Secretary) lacked the legal capacity to appoint them whether on temporary or permanent basis. The 1st Respondent and the County Secretary may have acted in good faith to address a gap that may have occurred due to some unforeseen exigencies but they had certainly had no excuse to disregard the law in the given manner. They should have moved in to address the question of lack of a County Service Board through legal means instead of resorting to short cuts to circumvent the law. A court of law cannot condone such actions. If the County Assembly became unruly and unreasonably thwarted all its efforts to put in place Public Service Board, they should have resolved the matter politically or look for legal solutions. I also find it contradictory for the 2nd Respondent to state on one hand that there were no substantive appointments and on another appointed substantive officers who discharged substantive duties.
50.The respondents (1,2 & 5) claim that there was no infringements of the constitution in the impugned appointments made.That contention however appears unfounded in light of clear constitutional provisions cited by the Petitioner.Article 179(2) of the Constitution deals with the composition County Executive Committee’s and how the positions are filled. The Article provides;‘‘(2)The county executive committee consists ofa.the county governor and the deputy county governorb.members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly. (emphasis added).’’
51.The County Governor, through the County Secretary with the approval of the County Assembly, appoints members of the County Executive Committee.
52.Section 30(2) of the County Government Act provides;
53.Section 35 of the same Act further states as follows:-
54.The petitioner’s challenge on the process of appointment of the 8 members nominated to County Executive Committee is legitimate particularly in the face of the provisions of Article 10 and 179 (2) (b) of the Constitution. It is therefore, clear that the impugned appointments infringed both the statute and the Constitution.The questions posed is, was the recruitment/appointment process transparent, and accountable? Did the 1st Respondent when appointing the County Executive Committee Members take into consideration the rule of law and participation of the people of Kitui and beyond through for example adverts inviting people’s views? The answers to those questions are partly answered by the 4th Respondent who states that they were not involved. What is more glaring however is that going by the replying affidavit filed by the County Secretary it’s obvious that no attempt was ever made to comply with the principles articulated under Article 10 of the Constitution of Kenya.
55.The impugned appointments violated the rule of law to the extent that the appointment disregarded the provisions of Section 30(2), 35(1) and 45 of the County Government Act as cited above for the following reasons namely;i.There was no transparency in the impugned appointments because the vacant seats were not advertised.ii.There was no public participation because views from the public regarding the suitability of the officers to be appointed were not taken.iii.There was no accountability because the impugned decisions were simply unilateral in all aspects whichever way one looks at it.
56.It is not disputed that historically in this country like many other places in the world, female gender has often faced discrimination on account of their sex. That is the genesis of affirmative actions taken by Kenya and in particular during the making of the new Constitution of Kenya 2010. The decision in Marilyn Muthoni Kamuru (Supra) is relevant here. Having made the strides this country has made over the gender question it is no longer viable at this time for anyone to state that the issue should be considered in a progressive way.I find the argument especially coming from the 1st Respondent a bit odd because she should be indeed an inspiration to the female gender by championing the two third rule but I will leave it at that.
57.It is also important to say something regarding the requirements that appointment such as the subject matter herein should be competitive and transparent. This constitutional imperative (under Article 10 & 232) ensures that any qualified persons are appointed to important and sensitive public offices. The reasons behind that is to ensure that the people get quality services in a transparent, accountable way (see John Mining Temoi & Anor, (Supra). When qualified persons are employed competitively to fill vacant positions in public service the appointed persons would owe their appointment to their qualifications rather than cronyism which more often than not lead to undesired practices such as corruption. In an open democratic state that cherishes the rule of law such incidents should be nipped in the bud.
58.This court having gone through the response made by the respondents in this petitions finds that the appointment of the cited officers fell far short of the constitutional demands. To the extent that the impugned appointments contravened clear provisions of the Constitution, the said appointments were nullity and I find them so.