Blow for CS Maina as court quashes rent tribunal appointments

The Labour court has quashed the appointment of five people to the Business Premises Rent Tribunal, saying the process was flawed.

Justice Maureen Onyango said on Friday that Industrialisation Cabinet Secretary (CS) Betty Maina failed to subject the exercise to public participation, hence the process was flawed and not transparent.

The court further noted that though the Business Premises Rent Tribunal Act does not prescribe the procedure for appointment of the tribunal members, the Public Service (Values and Principles) Act provides for competition and merit based appointments.

Justice Onyango said there was no evidence of a competitive process that would enable public participation and show the transparency and accountability required under the Constitution.

The judge also faulted the CS for failing to observe the two thirds gender rule in the appointments and said she appointed the members without compliance with Articles 10 and 232 of the Constitution.

“I find that the CS was in breach of not only Article 27 but also 232(1) (i) of the Constitution, by appointing only one woman out of five appointees,” said justice Onyango.

She observed that the legal fraternity is awash with qualified women who would have sent applications had there been an advertisement.

“It’s been 10 years since the promulgation of the Constitution. There is no lack of qualified women for appointment to the tribunal. No valid reason has been given by the respondents for failure to appoint at least two thirds of women to the tribunal,” she said.

No applications

The court further found that the five members of the tribunal - Cyprian Ngutharu (chair), Patricia Chepkurui, Kyalo Mbobu, Andrew Mutuma and Chege Gakuhi - had not applied for the positions, were not shortlisted and were never interviewed.

Mr Mbobu is the former chairman of the Political Parties Dispute Tribunal.

In defence of their appointment, the five told the court that only two women from the same ethic group and region applied for the positions, therefore only one was appointed.

Further, they said, there was room to appoint more members to the tribunal to balance the gender equation.

Mr Ngutharu said that sometime in June, the ministry asked for their resumes and that they submitted them.

He also said the CS consulted widely, both before and after calling for the CVs, and carried out internal reviews and competitive processes, including seeking further information and responses from potential candidates.

But Justice Onyango said the criteria followed in making the appointments was unconstitutional.

She said they were “more in keeping with the pre-new Constitution days when public officers were appointed at the whim of the minister or the President”.

“It is a settled fact that appointments to public office must be through an open, merit-based, inclusive and competitive process. The nomination of the members was discriminatory and lacked the transparency and openness necessary to uphold the rule of law and promote fair administrative action,” the court held.

The judge further noted that applications cannot be made in abstract and that there must be an announcement of a vacancy and a statement of the minimum qualifications, followed by shortlisting and interviews.

“Article 10 and 232, as well as Section 10 the Public Service (Values and Principles) Act, require more than academic qualifications. No mention has been made about the vetting of the candidates for compliance with tenets such as good governance, integrity, transparency and accountability,” she said.

Implications

Justice Onyango noted that local tribunals are subordinate courts by virtue of Article 159(1)(d) of the Constitution.

As such, she said, their members are judicial officers, according to Article 260 of the  Constitution.

The court added that members of all local tribunals are supposed to be appointed by the Judicial Service Commission, not Cabinet Secretaries of the parent ministries, since they discharge duties of judicial officers.

The implication of the ruling is that the tribunal will not conduct any activities.

Over 10,000 cases pending before the tribunal will be affected.

Justice Onyango said that until Parliament enacts a law, the Judicial Service Commission Act will remain the primary legislation on appointment of tribunal members.

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