George Opiyo & 2 others v Deputy County Commissioner, Gem & another [2015] eKLR

Key Facts

Issues

• The court evaluated whether the petition violated Article 27 of the Constitution by discriminating against the 2nd Respondent on the basis of her gender, as the petitioners argued she was unsuitable for the role due to being a woman.
• The court determined whether the appointment of Pauline Apondi as Assistant Chief of Ulamba sub-location was in accordance with the Constitution and legal requirements, including compliance with Articles 10 and 73 regarding public participation and leadership integrity.
• The court assessed whether the petition was premature, misconceived, and lacked merits due to the petitioners' failure to provide evidence of the 2nd Respondent's unsuitability and reliance on speculative claims about her inability to manage insecurity in the sub-location.

Holdings

• The court dismissed the petition, holding that it violated Article 27 of the Constitution by discriminating against the 2nd Respondent (Pauline Apondi) on the basis of her sex. The petitioners' claims that the appointment was unconstitutional due to lack of consultation and unsuitability were deemed unfounded, as no evidence was provided to support these allegations. The court emphasized that the appointment followed due process, including public participation and adherence to constitutional criteria under Articles 10 and 73.
• The court determined the appointment of the 2nd Respondent as valid, noting that the 1st Respondent (Deputy County Commissioner) followed proper procedures: advertising the post, conducting a competitive selection process with public involvement, and ensuring transparency and accountability. The 2nd Respondent was selected based on qualifications, scores, and criteria outlined in the scheme of service for Chiefs and Assistant Chiefs.
• The court found the petition premature and unsubstantiated, as the 2nd Respondent had not yet assumed her role, leaving no evidence of her inability to perform duties. The petitioners' assertions about insecurity and the need for a 'stronger personality' were dismissed as speculative and unsupported by documentary proof. The court highlighted that gender should not determine suitability for roles requiring patrols or leadership in challenging areas.

Remedies

• Each party is to bear their own costs, as the court determined the petition to be without merits but acknowledged the public interest aspect.
• The petition was dismissed as it lacks merits and is without legal basis, as the court found that the appointment followed due process and the petitioners violated Article 27 by discriminating against the 2nd respondent on the ground of sex.

Legal Principles

• The judgment highlighted the importance of public participation (Article 10) and equality (Article 27) as national values. The court emphasized that appointments must align with these principles, but found the petitioners' claims regarding these issues lacked merit and were based on speculative assertions rather than evidence.
• The court determined that the petitioners did not demonstrate how the principles of natural justice were violated in the appointment of the 2nd Respondent. The judgment emphasized that the appointment followed a competitive process with public participation, and the petitioners' allegations lacked evidentiary support.
• The court rejected the petitioners' argument that the 1st Respondent violated the right to legitimate expectation under the Constitution. It concluded that the petitioners failed to demonstrate how the appointment process denied the public their right to access services or compromised their legitimate expectations.

Precedent Name

• Mumo Matemu V. Trusted Society of Human Rights Alliance & 5 Others
• Benson Ritho Mureithi V Cabinet Secretary Ministry of Environment
• Anarita Karimi Njeru V. Republic
• David Kariuki Muigna V. Attorney General & Another
• Trusted Society of Human Rights Alliance V. The A.G.
• International Center for Policy and Conflict and 4 Others V. Uhuru Kenyatta and Others
• Kenya Youth Parliament & 2 Others V. A.G. & Another

Cited Statute

Judge Name

Passage Text

• I therefore find and hold the petitioners petition violates the provisions of Article 27 of the constitution and should be dismissed.
• The petitioners did not put forward any witness whether in documentary form or otherwise in support of the in assertions under paragraph 6, 7, 8 and 9. The 2nd Respondent by the time of filing of this petition it is not alleged that she had reported on duty or in office for the petitioners to have rated her performance as wanting. Their petition is based on personal preconception of the 2nd Respondent on the basis of her sex as per their annexure GO – 4, their fears and/or speculation of what may happen when the 2nd Respondent assumes office.
• The 1st Respondent made appointment of the 2nd Respondent on the basis of clear constitutional criteria and complied with Article 10 and 73 of the constitution of Kenya 2010. The 2nd Respondent who was appointed to the position of Assistant Chief met certain integrity and competence standards as set out under chapter 6 of the constitution of Kenya 2010.