REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E148 OF 2024
KARANJA KAMOTHO…………………………………….PETITIONER
VERSUS
MINISTRY OF FOREIGN AND DIASPORA AFFAIRS…….1 ST RESPONDENT
HON. MUSALIA MUDAVADI,
CABINET SECRETARY,
MINISTRY OF FOREIGN & DIASPORA AFFAIRS…………2 ND RESPONDENT
DR. KORIR SING’OEI PRINCIPAL SECRETARY,
STATE DEPARTMENT OF FOREIGN AFFAIRS……………3 RD RESPONDENT
THE HON. ATTORNEY GENERAL………………………….4 TH RESPONDENT
AND
PROF. LUDEKI CHWEYA, Ph. D…………………….1 ST INTERESTED PARTY
PROF. MARIA NZOMO………………………………2 ND INTERESTED PARTY
DR. PATRICK MALUKI MUTHENGI………………..3 RD INTERESTED PARTY
DR. OWISO OWISO………………………………….4 TH INTERESTED PARTY
JUDGMENT
Petitioner’s case
1. In June 2023, positions for three members of the Foreign Service Academy Council were advertised pursuant to section 30(1) (d) of the Foreign Service Act, 2021. The 2 nd , 3 rd and 4 th interested parties were among the persons who applied for the positions. The Selection Panel chaired by the 1 st interested party, shortlisted 26 applicants for interview and the 2 nd , 3 rd and 4 th interested parties were among those interviewed.
2. Following the interviews, the 2 nd 3 rd and 4 th interested parties expected to be informed of the outcome of the interviews but this did not happen. On 22 nd November 2023, an article in the Star News Paper reported that the 2 nd , 3 rd and 4 th interested parties had been selected but the 1 st , 2 nd and 3 rd respondents had declined to appoint them and had instead directed a re-advertisement of the positions.
3. The petitioner visited the 1 st respondent’s website and discovered that by notice issued by the 3 rd respondent, the positions had indeed been re-advertised and fresh applications were to be received by 4 th December 2023. No reasons were given for the re-advertisement and the outcome of the initial interviews was not disclosed.
4. The petitioner filed a petition dated 18 th March 2024 and amended on 25 th March 2025, challenging the respondents’ actions as unconstitutional. The petitioner asserted that since the lapse of the deadline for the re-advertisement, there was no information from the 1 st respondent regarding applications received, shortlisting, interviews, selection or appointments.
5. The petitioner contended that Kenyans had legitimate expectation that the outcome of the initial interviews would be publicly communicated and those competitively selected appointed. Contrary to this expectation, however, the 1 st , 2 nd and 3 rd respondents proceeded with fresh recruitment and appointment process and on 9 th August 2024, through Gazette Notice No. 9623 dated 8 th August 2024 (Kenya Gazette Vol. CXXVI—No. 121, 9 th August 2024), the 2 nd respondent appointed Beatrice Kituyi, Dr. Kenneth Wyne Mutuma and Dr. Patrick Muthengi Maluki as members of the Foreign Service Academy Council.
6. The petitioner asserted that in doing so, the 1 st , 2 nd and 3 rd respondents unfairly discriminated against the persons who had already been competitively shortlisted, interviewed and recruited and also occasioned unnecessary and unjustified public expenditure.
7. The petitioner maintained that the 1 st , 2 nd and 3 rd respondents’ actions violated articles 10(1) (b), (c); 24, 27, 28, 35, 47, 201 and 232 of the Constitution, and sought declarations and orders to correct the impugned actions.
1 st , 2 nd and 3 rd respondents’ case
8. The 1 st , 2 nd and 3 rd respondents opposed the petition through a replying affidavit sworn by Dr. Korir sing’oei, Principal Secretary, State Department of Foreign Affairs, the 3 rd respondent. The 1 st 2 nd and 3 rd respondents admitted that the positions were advertised on 20 th July 2023 and 27 persons were shortlisted and invited for interview, but only 24 attended the interview.
9. The interviewing committee came up with various scenarios to cater for the constitutional principles of gender and regional balance, while still considering merit. One of the scenarios recommended appointment of the 2 nd , 3 rd and 4 th interested parties to the positions.
10. The 1 st 2 nd and 3 rd respondents stated that the initial report (dated 8 th November 2023) was misplaced but was subsequently resubmitted on 11 th April 2024. Upon considering the persons presented, the 1 st respondent made a decision to re-advertise the positions to attract a wider pool of candidates.
11. Following the re-advertisement, shortlisting was done and 18 candidates were shortlisted. A new interview Committee was constituted and 16 candidates were interviewed and 9 candidates made the minimum mark of seventy five percent. A report on the outcome of the interview process was compiled with various proposals on persons to be appointed.
12. The 1 st , 2 nd and 3 rd respondents considered the outcome of the interview process and selected suitable persons. They stated that at the time of filing the replying affidavit, the persons selected for appointment had already been gazetted and assumed office thus, the petition had been overtaken by events and is now moot.
13. In the view of the 1 st , 2 nd and 3 rd respondents, upon the appointments being made, this court’s jurisdiction over the issue ceased to exists as there arose an employment relationship making the dispute one for the Employment and Labour Relations Court.
1 st interested party’s case
14. The 1 st interested party did not file a response to the petition.
2 nd interested party’s case
15. The 2 nd interested party filed replying affidavit in response to the petition. The 2 nd interested party confirmed applying and attending the interview. After the interview, he was informed that the outcome of the interview would be communicated to her.
16. The 2 nd interested party stated that sometime in November 2023, she read in the Star Newspaper that the 3 rd and 4 th interested parties and herself were successful in the interviews and had been selected for appointment to the advertised positions, but the 1 st , 2 nd and 3 rd respondents had declined to appoint them and instead directed that the vacancies be re-advertised.
17. The 2 nd interested party asserted that the 3 rd respondent later re-adverted the positions and denied receiving communication on the outcome of the interview she had attended.
3 rd interested party’s case
18. The 3 rd interested party opposed the petition through an affidavit of protest stating that did not wish to participate in the proceedings and urged the court to strike out his name from the pleadings.
4 th interested party’s case
19. The 4 th interested party filed a replying affidavit and further affidavit in support of the petition. The 4 th interested party stated that he applied for the advertised positions, was invited and attended the interview. At the conclusion of the interview, he was informed that the outcome of the interview would be communicated to him, but this was not done.
20. The 4 th interested party reiterated the position regarding the reports in the Star Newspaper, the decline to appoint them and the re-advertisement of the positions. He contended that he was prejudiced because of the rigorous process he had undergone when applying and attending the interview. He denied receiving communication on the outcome of the interviews or reasons for the re-advertisement which was in violation of his legitimate expectation, fair administrative action and national values and principles of good governance guaranteed under articles 47 and 10 (2) (c) of the Constitution.
Submissions
21. The petition was disposed of through written submissions with brief oral submissions.
Petitioner’s submissions
22. The petitioner filed written submissions arguing that by ignoring the outcome of the competitive recruitment process and instead re-advertising the positions, the respondents failed to uphold national values and principles of good governance, integrity, transparency and accountability in articles 10(1) (c) of the Constitution and sections (3) and 11(5) of the Foreign Service Act. The petitioner relied on the decisions in Consumers Federation of Kenya (COFEK) v Attorney General & 2 others [2012] eKLR and Community Advocacy and Awareness Trust & 8 Others v Attorney General & 6 others [2012] KEHC 5589 (KLR).
23. The petitioner maintained that the respondents violated the principles in article 232 of the Constitution by ignoring the recommendations of the selection panel and making the decision to re-advertise the positions without informing the interviewed candidates on the status of the interviews. The petitioner argued that it was not until the petition was filed that reasons were given. The 1 st respondent did not also tell under what provisions of the law the positions were re-advertised, making the decision arbitrary.
24. The petitioner went on to submit that the respondents violated legitimate expectation of the applicants that had been interviewed, including the 2 nd , 3 rd and 4 th interested parties and the public as expected under sections 3(3) and 11(5) of the Foreign Service Act and by extension the Constitution. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014] eKLR.
25. It was the petitioner’s position, that the respondents had kept the public informed of the actions being undertaken during the process thereby aroused public expectation that same transparency would be maintained after the interviews until appointments were made. By not adhering to the recommendations of the selection panel, the respondents violated rights of the interested parties guaranteed under articles 47 and 50 (1) of the Constitution.
26. Regarding the argument that the petition had been overtaken by events, the petitioner submitted that the respondents went against the public policy doctrine of lis pendens when they filled the positions while the matter was pending in court. The petitioner relied on the decision in K N Aswathnarayan Setty (D) Tr. LRs. & Others v State of Karnataka & Others [2013] INSC 1069.
27. The petitioner urged the court to consider when the petition was filed, the prayers sought, whether the respondents altered the substratum of the petition and whether they were aware of the petition to determine whether the matter has been overtaken by events.
1 st , 2 nd and 3 rd respondents’ submissions
28. The 1 st , 2 nd and 3 rd respondents submitted, relying on section 30(1) (d) of the Foreign Service Act, that the recruitment process was done in accordance with the law. They argued again relying on section 30 (2) of the Act, that the petitioner had not demonstrated that the people appointed did not meet qualifications and requirements of the law.
29. The 1 st , 2 nd and 3 rd respondents submitted that the re-advertisement was justified and was intended to improve balance in representation and uphold articles 27, 201 and 232 of the Constitution. They relied on the decision in Orogo v Chairman Board of Directors Kenya Revenue Authority & 2 others [ 2023] KEHC 24847 (KLR).
30. The 1 st , 2 nd and 3 rd respondents maintained that appointments having taken effect on 9 th August 2024 and the Council commenced its functions, the issues raised in the petition are now moot. They argued that setting aside the appointments would unsettle legitimate expectation of those appointed and disrupt the functioning of a public body. Reliance was placed on the decision in Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR.
31. The 1 st , 2 nd and 3 rd respondents denied the petitioner’s claim on violation of the right to information since no request for information was made seeking any information regarding the re-advertisement or the results of the first interviews. The petitioner’s right to fair administrative action was also not violated because the petitioner was not an applicant for the positions advertised or interviews conducted. The 1 st 2 nd and 3 rd respondents relied on section 107 of the Evidence Act on the burden of proof and urged the court to dismiss the petition.
4 th interested party’s submissions
32. The 4 th interested party submitted that the 1 st , 2 nd and 3 rd respondents’ decision to disregard the report of the first interview committee and instead to re-advertise the positions violated article 47 of the Constitution as read with section 4 of the Fair Administrative Action Act. He relied on the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] KECA 741 (KLR) and Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] KEHC 8915 (KLR).
33. It was the 4 th interested party’s view, that the 1 st , 2 nd and 3 rd respondents’ decisions were arbitrary, opaque, unaccountable, made in bad faith and were procedurally unfair. They failed to communicate the outcome of the interview process and give reasons for any decisions taken not to implement the recommendation of the interview committee.
34. The 4 th interested party submitted that candidates who had been interviewed had a legitimate expectation that the outcome of the interview process would be communicated promptly; the recommendation of the interview committee would be respected and any decision taken on that report would be promptly communicated. He relied on the decisions in Republic v Ministry of Education & 3 others; MGJB (Suing on behalf of a minors, SKG and SKG1) (Exparte Applicant) [2021] KEHC 7682 (KLR) and Kenya Human Rights Commission v Non- Governmental Organisations Co-ordination Board [2016] KEHC 5405 (KLR).
35. The 4 th interested party refuted the contention that the report was misplaced and resubmitted on 11 th April 2023. He argued that the first interview committee’s report was presented to the 1 st , 2 nd and 3 rd respondents on 8 th November 2023 yet the positions were re-advertised on 10 th November 2023. The 1 st , 2 nd and 3 rd respondents were obligated to communicate the outcome of the interviews upon receiving the report on 8 th November 2023. Failure to do so, he argued violated articles 35 and 47 of the Constitution and the impugned decisions are therefore unlawful.
36. According to the 4 th interested party, the respondents acted in bad faith which was demonstrated by the fact that while the vacancies were advertised in July 2023, the list of applicants; those shortlisted and interview dateSs were publicly communicated; the outcome of the interview was kept secret and only came to light through the media on 22 nd November 2023.
37. The 4 th interested party submitted that the lack of transparency denied the candidates who had been interviewed the right to know the outcome of the interview process and the reasons for disregarding that outcome. It also denied the public an opportunity for public participation. These actions violated articles 10(2) (c), 35, 47 and 232(1) of the Constitution and sections (3), 11(5) and 30 (1)(d) of the Foreign Service Act.
38. The 4 th interested party again argued that the respondents’ decision was irrational and unreasonable. He relied on the decision in Republic v Ministry of Education & 3 others; MGJB (Suing on behalf of a minors, SKG and SKG1 ) (supra) that no reasons were given for the decision to disregard the report of the interview committee.
39. The 4 th respondent maintained that the process of re-advertising the positions differed from the initial recruitment process in that the only thing published was the advertisement published on 10 th November 2023 and the Gazette Notice. The 4 th interested party relied on the decisions in Consumer Federation of Kenya (COFEK) v Attorney General and 2 others (supra) and Kariuki v Board of the Tourism Regulatory Authority & 2 others [2023] KEHC 18453 (KLR) and urged that the re-advertised process was not competitive or transparent and offended articles 10, 35, 47and 232(1) 0f the Constitution and sections 3(3), 11(5) and 30(1) (d) of the Foreign Service Act.
40. The 4 th interested party disagreed with the argument that the petition had been overtaken by events because the appointments were made with the full knowledge of the petition. The appointments were calculated at embarrassing the court and defeating the judicial process which should not be allowed.
41. The 4 th interested party maintained that the respondents having ignored court proceedings and proceeded with an unlawful exercise that did not strip the court of its powers under articles 23, 165 (3) (b) and d(ii) of the Constitution. He argued that there is no employer-employee relationship between the petitioner and the respondents to warrant invocation of the jurisdiction of the ELRC. The 4 th interested party relied on the decisions in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) and Kariuki v Board of the Tourism Regulatory Authority & 2 others (supra).
42. The interested party further relied on the decision in Okello & another v Cabinet Secretary for Industrialization, Trade and Enterprise Development & another; Ngutari & 7 others (Interested parties) [2020] KEELRC 289 (KLR) and urged the court to allow the petition.
Determination
43. I have considered the pleadings, arguments by parties and the decisions relied on. The issue that arises for determination is whether the respondents’ decision to re advertise the positions whose interviews had been conducted, violated the Constitution and the law. The petitioner argued in the affirmative, a position that was supported by the 4 th interested party arguing that the actions violated sections 3(3), 11(5) and 30(1) (d) of the Foreign Service Act and several articles of the Constitution. The respondents took the opposite view, maintaining that the actions were lawful.
44. Section 3 of the Foreign Service Act establishes a foreign service of the Republic of Kenya in the ministry. Subsection (2) provides that the Foreign Service is to be headed by the Cabinet Secretary. Subsection (3) states that in the performance of its functions, the Foreign Service is to be guided by the national values and principles of governance enshrined in the Constitution, international law and customs of diplomatic practice.
45. Section 4 is on the composition of the Foreign Service; section 5 is on the functions of the Foreign Service, while section 6 is on the powers and functions of the Cabinet Secretary.
46. Section 28 which is relevant to this petition, establishes the Foreign Service Academy as a body corporate with perpetual succession and a common seal. It has powers to sue and be sued in its corporate name. The Academy is to be the principal institution for training and capacity building for members of the Foreign Service; it is to undertake foreign policy consultancy, research and analysis for the Service, Government and clients in the private and public sector; develop and conduct periodic evaluation of training programmes to ensure relevance, quality and effectiveness; undertake continuous foreign service training and other programmes to enhance skills, capacity and professionalism of officers. It is to offer induction courses to all newly employed persons to help them transition into a career in the Service; administer entry and promotional examinations within the Service; undertake training of members of the Service before deployment for a tour of duty; conduct examinations for the grant of such professional and academic awards as may be prescribed; develop and maintain a repository of research resources on foreign policy and related issues; develop linkages and collaborations with institutions of learning, professional organizations, private sector and other similar institutions across the world; control the publication and use of research findings of the Service; and perform all other acts necessary for the proper performance of its functions under the Act, Foreign Service which may lawfully be done or performed by a body corporate.
47. Section 30 provides that the Academy is to be governed by a Council comprising of-a Chairperson appointed by the Cabinet Secretary from amongst the persons appointed under paragraph (d); the Principal Secretary in the Ministry responsible for matters relating to foreign affairs or a representative designated in writing; the Principal Secretary in the National Treasury or a representative designated in writing; “three persons competitively recruited and appointed by the Cabinet Secretary, one of whom shall be a person who teaches diplomacy or international relations in a university recognized in Kenya ;” the Secretary of the Public Service Commission; the Director-General of the Kenya School of Government; and the Director-General, who shall be an ex officio member.
48. Subsection (2) provides that a person shall not be appointed to the Council under subsection (1)(d) unless such person—meets the requirements of Chapter Six of the Constitution; possesses a post graduate degree from a recognised university in—international relations; international law; international diplomacy; economics; social sciences; or a relevant field; and possesses experience, knowledge or expertise in matters relating to foreign and diplomatic service.
49. Under subsection (3), the Chairperson and members of the Council appointed under subsection (1)(d), are to hold office for a term of three years from the date of appointment and are eligible for re-appointment for one further term.
50. The petitions, the subject of this petition, related to persons appointed under subsection 30 (1)(d) that is; three persons who are to be competitively recruited. The petitioner argued that the three positions were initially advertised, applications received and interviews conducted but results of the interviews were not made public. Instead, the positions were re-advertised and fresh interviews conducted which, the petitioner argued, violated constitutional principles, the law and rights and fundamental freedoms.
51. The respondents on their part stated that indeed the three positions were advertised and 27 persons were shortlisted and invited for interview, but only 24 attended the interview. The interviewing committee came up with various scenarios to cater for the constitutional principles of gender and regional balance, while still considering merit. One of the scenarios recommended appointment of the 2 nd 3 rd and 4 th interested parties to the position of members of the council.
52. According to the respondents, the initial report was misplaced and was subsequently resubmitted on 11 th April 2024. The 1 st respondent considered the names presented and made a decision to re-advertise the positions to attract a wider pool of candidates. 18 candidates were shortlisted and 16 were interviewed by a new committee with 9 candidates making the minimum mark of seventy five percent. A report was submitted with various proposals on persons to be appointed in compliance with the law. The 1 st respondent considered the outcome of the interview process and selected the suitable persons for appointment which was done. Those appointed were gazetted and assumed office.
53. The petitioner’s argument was that the process of readvertising the positions was not transparent and that those who had been interviewed earlier were entitled to know the result of the interview which was not the case and, therefore, their right guaranteed under article 47 of the Constitution was violated.
54. There is no dispute that the three positions were advertised; applications submitted; applicants were shortlisted and interviews conducted. There is also no denial that results of that interviews were not made public. The respondents’ position was that after considering the proposals on the persons to appoint, the 1 st respondent made a decision to readvertise the positions to attract a wide pool of applicants.
55. The positions, the subject of this petition, are established by statute which requires that appointment of the three members of the Council be competitively done. That means the recruitment has to meet the standards in article 232 of the Constitution namely; fair competition and merit as the basis of appointment and promotion; representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement at all levels of public service, including men and women; members of all ethnic groups and persons with disabilities.
56. The appointments must also take into account the requirement in article 27 of the Constitution that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres and that not more than two thirds of members of elective or appointive bodies should be of the same gender.
57. The respondents stated that the reason why the positions were re-advertised was to attract a wide pool from which selection could be made. Although it would have been appropriate for the respondents to disclose reasons for not proceeding with appointments based on the initial interviews, the petitioner did not argue that the 1 st respondent acted outsider the law and if so, identify the section of the law that was violated.
58. The fact that the positions were re-advertised was in itself an admission that the process of re-advertisement was public and that those who had applied still had a chance to re-apply and be considered. This is contrary to the 4 th interested party’s view that the re-advertisement process was not competitive or transparent. Openness or transparency is a question of fact to be deduced from the circumstances of each case. The fact that members of the public were aware of the re-advertisement and indeed applied, was confirmation that there was an element of transparency. If one individual did not see the readvertisement, that did not mean the process was not open and transparent.
59. The petitioner and 4 th interested party argued that there was no good faith in the readvertisement and that lack of transparency denied the persons who had been interviewed the right to know the outcome of the interview process and the reasons for disregarding that outcome. They also argued that the re-advertisement denied the public an opportunity for public participation in violation of articles 10(2) (c), 35, 47 and 232(1) of the Constitution and sections (3), 11(5) and 30 (1)(d) of the Foreign Service Act.
60. I have considered respective parties’ arguments in this regard. First regarding public participation under article 10 (2) (c), the petitioner and 4 th interested party did not show how public participation was required to be done during the re-advertised process or even how it was done during the first process that the second process failed to comply with that violated article 10 of the Constitution. I have perused the provisions of the Act under which the process is undertaken. The section states that the positions should be competitively filled. Competition takes various forms one of which is to advertise the positions, receive applications and conduct interview from which suitable persons are selected for appointment. The petitioner did not demonstrate that the law was not followed in this respect.
61. Regarding information under article 35, it is worth noting, that article 35 is on access to information. Article 35(1) states that every citizen has the right of access to—(a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
62. The right of access to information must be claimed and lived. That is, a person who seeks to rely on this article must make a request for information from a State agency or private entity. In the case of information from a private entity, the person must show that the information is sought for purposes of realising or enforcing a right-See Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR).
63. Neither the petitioner nor 4 th interested party showed that they had requested for information as required by section 8 of Access to Information Act to enable this court make a determination on the issue. It is not enough for a party to argue that the right of access to information had been violated without demonstrating how so that the court can determine the veracity of the claim.
64. On the argument that article 47 was violated, one must appreciate the import of this article. Article 47 is on the right to fair administrative action. It provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Sub article (2) states that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
65. Article 47 protects rights and fundamental freedoms. These must be rights or fundaments freedoms guaranteed in the Bill of Rights or any other law. This is because under article 19(3)(b) of the Constitution, rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law. In that regard, a party claiming violation of article 47 rights must show that the right is guaranteed under the Bill of Rights or is recognised by law to enable the court assess the claim of such violation.
66. In this petition, although it would have been
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E148 OF 2024
KARANJA KAMOTHO…………………………………….PETITIONER
VERSUS
MINISTRY OF FOREIGN AND DIASPORA AFFAIRS…….1 ST RESPONDENT
HON. MUSALIA MUDAVADI,
CABINET SECRETARY,
MINISTRY OF FOREIGN & DIASPORA AFFAIRS…………2 ND RESPONDENT
DR. KORIR SING’OEI PRINCIPAL SECRETARY,
STATE DEPARTMENT OF FOREIGN AFFAIRS……………3 RD RESPONDENT
THE HON. ATTORNEY GENERAL………………………….4 TH RESPONDENT
AND
PROF. LUDEKI CHWEYA, Ph. D…………………….1 ST INTERESTED PARTY
PROF. MARIA NZOMO………………………………2 ND INTERESTED PARTY
DR. PATRICK MALUKI MUTHENGI………………..3 RD INTERESTED PARTY
DR. OWISO OWISO………………………………….4 TH INTERESTED PARTY
JUDGMENT
Petitioner’s case
1. In June 2023, positions for three members of the Foreign Service Academy Council were advertised pursuant to section 30(1) (d) of the Foreign Service Act, 2021. The 2 nd , 3 rd and 4 th interested parties were among the persons who applied for the positions. The Selection Panel chaired by the 1 st interested party, shortlisted 26 applicants for interview and the 2 nd , 3 rd and 4 th interested parties were among those interviewed.
2. Following the interviews, the 2 nd 3 rd and 4 th interested parties expected to be informed of the outcome of the interviews but this did not happen. On 22 nd November 2023, an article in the Star News Paper reported that the 2 nd , 3 rd and 4 th interested parties had been selected but the 1 st , 2 nd and 3 rd respondents had declined to appoint them and had instead directed a re-advertisement of the positions.
3. The petitioner visited the 1 st respondent’s website and discovered that by notice issued by the 3 rd respondent, the positions had indeed been re-advertised and fresh applications were to be received by 4 th December 2023. No reasons were given for the re-advertisement and the outcome of the initial interviews was not disclosed.
4. The petitioner filed a petition dated 18 th March 2024 and amended on 25 th March 2025, challenging the respondents’ actions as unconstitutional. The petitioner asserted that since the lapse of the deadline for the re-advertisement, there was no information from the 1 st respondent regarding applications received, shortlisting, interviews, selection or appointments.
5. The petitioner contended that Kenyans had legitimate expectation that the outcome of the initial interviews would be publicly communicated and those competitively selected appointed. Contrary to this expectation, however, the 1 st , 2 nd and 3 rd respondents proceeded with fresh recruitment and appointment process and on 9 th August 2024, through Gazette Notice No. 9623 dated 8 th August 2024 (Kenya Gazette Vol. CXXVI—No. 121, 9 th August 2024), the 2 nd respondent appointed Beatrice Kituyi, Dr. Kenneth Wyne Mutuma and Dr. Patrick Muthengi Maluki as members of the Foreign Service Academy Council.
6. The petitioner asserted that in doing so, the 1 st , 2 nd and 3 rd respondents unfairly discriminated against the persons who had already been competitively shortlisted, interviewed and recruited and also occasioned unnecessary and unjustified public expenditure.
7. The petitioner maintained that the 1 st , 2 nd and 3 rd respondents’ actions violated articles 10(1) (b), (c); 24, 27, 28, 35, 47, 201 and 232 of the Constitution, and sought declarations and orders to correct the impugned actions.
1 st , 2 nd and 3 rd respondents’ case
8. The 1 st , 2 nd and 3 rd respondents opposed the petition through a replying affidavit sworn by Dr. Korir sing’oei, Principal Secretary, State Department of Foreign Affairs, the 3 rd respondent. The 1 st 2 nd and 3 rd respondents admitted that the positions were advertised on 20 th July 2023 and 27 persons were shortlisted and invited for interview, but only 24 attended the interview.
9. The interviewing committee came up with various scenarios to cater for the constitutional principles of gender and regional balance, while still considering merit. One of the scenarios recommended appointment of the 2 nd , 3 rd and 4 th interested parties to the positions.
10. The 1 st 2 nd and 3 rd respondents stated that the initial report (dated 8 th November 2023) was misplaced but was subsequently resubmitted on 11 th April 2024. Upon considering the persons presented, the 1 st respondent made a decision to re-advertise the positions to attract a wider pool of candidates.
11. Following the re-advertisement, shortlisting was done and 18 candidates were shortlisted. A new interview Committee was constituted and 16 candidates were interviewed and 9 candidates made the minimum mark of seventy five percent. A report on the outcome of the interview process was compiled with various proposals on persons to be appointed.
12. The 1 st , 2 nd and 3 rd respondents considered the outcome of the interview process and selected suitable persons. They stated that at the time of filing the replying affidavit, the persons selected for appointment had already been gazetted and assumed office thus, the petition had been overtaken by events and is now moot.
13. In the view of the 1 st , 2 nd and 3 rd respondents, upon the appointments being made, this court’s jurisdiction over the issue ceased to exists as there arose an employment relationship making the dispute one for the Employment and Labour Relations Court.
1 st interested party’s case
14. The 1 st interested party did not file a response to the petition.
2 nd interested party’s case
15. The 2 nd interested party filed replying affidavit in response to the petition. The 2 nd interested party confirmed applying and attending the interview. After the interview, he was informed that the outcome of the interview would be communicated to her.
16. The 2 nd interested party stated that sometime in November 2023, she read in the Star Newspaper that the 3 rd and 4 th interested parties and herself were successful in the interviews and had been selected for appointment to the advertised positions, but the 1 st , 2 nd and 3 rd respondents had declined to appoint them and instead directed that the vacancies be re-advertised.
17. The 2 nd interested party asserted that the 3 rd respondent later re-adverted the positions and denied receiving communication on the outcome of the interview she had attended.
3 rd interested party’s case
18. The 3 rd interested party opposed the petition through an affidavit of protest stating that did not wish to participate in the proceedings and urged the court to strike out his name from the pleadings.
4 th interested party’s case
19. The 4 th interested party filed a replying affidavit and further affidavit in support of the petition. The 4 th interested party stated that he applied for the advertised positions, was invited and attended the interview. At the conclusion of the interview, he was informed that the outcome of the interview would be communicated to him, but this was not done.
20. The 4 th interested party reiterated the position regarding the reports in the Star Newspaper, the decline to appoint them and the re-advertisement of the positions. He contended that he was prejudiced because of the rigorous process he had undergone when applying and attending the interview. He denied receiving communication on the outcome of the interviews or reasons for the re-advertisement which was in violation of his legitimate expectation, fair administrative action and national values and principles of good governance guaranteed under articles 47 and 10 (2) (c) of the Constitution.
Submissions
21. The petition was disposed of through written submissions with brief oral submissions.
Petitioner’s submissions
22. The petitioner filed written submissions arguing that by ignoring the outcome of the competitive recruitment process and instead re-advertising the positions, the respondents failed to uphold national values and principles of good governance, integrity, transparency and accountability in articles 10(1) (c) of the Constitution and sections (3) and 11(5) of the Foreign Service Act. The petitioner relied on the decisions in Consumers Federation of Kenya (COFEK) v Attorney General & 2 others [2012] eKLR and Community Advocacy and Awareness Trust & 8 Others v Attorney General & 6 others [2012] KEHC 5589 (KLR).
23. The petitioner maintained that the respondents violated the principles in article 232 of the Constitution by ignoring the recommendations of the selection panel and making the decision to re-advertise the positions without informing the interviewed candidates on the status of the interviews. The petitioner argued that it was not until the petition was filed that reasons were given. The 1 st respondent did not also tell under what provisions of the law the positions were re-advertised, making the decision arbitrary.
24. The petitioner went on to submit that the respondents violated legitimate expectation of the applicants that had been interviewed, including the 2 nd , 3 rd and 4 th interested parties and the public as expected under sections 3(3) and 11(5) of the Foreign Service Act and by extension the Constitution. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014] eKLR.
25. It was the petitioner’s position, that the respondents had kept the public informed of the actions being undertaken during the process thereby aroused public expectation that same transparency would be maintained after the interviews until appointments were made. By not adhering to the recommendations of the selection panel, the respondents violated rights of the interested parties guaranteed under articles 47 and 50 (1) of the Constitution.
26. Regarding the argument that the petition had been overtaken by events, the petitioner submitted that the respondents went against the public policy doctrine of lis pendens when they filled the positions while the matter was pending in court. The petitioner relied on the decision in K N Aswathnarayan Setty (D) Tr. LRs. & Others v State of Karnataka & Others [2013] INSC 1069.
27. The petitioner urged the court to consider when the petition was filed, the prayers sought, whether the respondents altered the substratum of the petition and whether they were aware of the petition to determine whether the matter has been overtaken by events.
1 st , 2 nd and 3 rd respondents’ submissions
28. The 1 st , 2 nd and 3 rd respondents submitted, relying on section 30(1) (d) of the Foreign Service Act, that the recruitment process was done in accordance with the law. They argued again relying on section 30 (2) of the Act, that the petitioner had not demonstrated that the people appointed did not meet qualifications and requirements of the law.
29. The 1 st , 2 nd and 3 rd respondents submitted that the re-advertisement was justified and was intended to improve balance in representation and uphold articles 27, 201 and 232 of the Constitution. They relied on the decision in Orogo v Chairman Board of Directors Kenya Revenue Authority & 2 others [ 2023] KEHC 24847 (KLR).
30. The 1 st , 2 nd and 3 rd respondents maintained that appointments having taken effect on 9 th August 2024 and the Council commenced its functions, the issues raised in the petition are now moot. They argued that setting aside the appointments would unsettle legitimate expectation of those appointed and disrupt the functioning of a public body. Reliance was placed on the decision in Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR.
31. The 1 st , 2 nd and 3 rd respondents denied the petitioner’s claim on violation of the right to information since no request for information was made seeking any information regarding the re-advertisement or the results of the first interviews. The petitioner’s right to fair administrative action was also not violated because the petitioner was not an applicant for the positions advertised or interviews conducted. The 1 st 2 nd and 3 rd respondents relied on section 107 of the Evidence Act on the burden of proof and urged the court to dismiss the petition.
4 th interested party’s submissions
32. The 4 th interested party submitted that the 1 st , 2 nd and 3 rd respondents’ decision to disregard the report of the first interview committee and instead to re-advertise the positions violated article 47 of the Constitution as read with section 4 of the Fair Administrative Action Act. He relied on the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] KECA 741 (KLR) and Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] KEHC 8915 (KLR).
33. It was the 4 th interested party’s view, that the 1 st , 2 nd and 3 rd respondents’ decisions were arbitrary, opaque, unaccountable, made in bad faith and were procedurally unfair. They failed to communicate the outcome of the interview process and give reasons for any decisions taken not to implement the recommendation of the interview committee.
34. The 4 th interested party submitted that candidates who had been interviewed had a legitimate expectation that the outcome of the interview process would be communicated promptly; the recommendation of the interview committee would be respected and any decision taken on that report would be promptly communicated. He relied on the decisions in Republic v Ministry of Education & 3 others; MGJB (Suing on behalf of a minors, SKG and SKG1) (Exparte Applicant) [2021] KEHC 7682 (KLR) and Kenya Human Rights Commission v Non- Governmental Organisations Co-ordination Board [2016] KEHC 5405 (KLR).
35. The 4 th interested party refuted the contention that the report was misplaced and resubmitted on 11 th April 2023. He argued that the first interview committee’s report was presented to the 1 st , 2 nd and 3 rd respondents on 8 th November 2023 yet the positions were re-advertised on 10 th November 2023. The 1 st , 2 nd and 3 rd respondents were obligated to communicate the outcome of the interviews upon receiving the report on 8 th November 2023. Failure to do so, he argued violated articles 35 and 47 of the Constitution and the impugned decisions are therefore unlawful.
36. According to the 4 th interested party, the respondents acted in bad faith which was demonstrated by the fact that while the vacancies were advertised in July 2023, the list of applicants; those shortlisted and interview dateSs were publicly communicated; the outcome of the interview was kept secret and only came to light through the media on 22 nd November 2023.
37. The 4 th interested party submitted that the lack of transparency denied the candidates who had been interviewed the right to know the outcome of the interview process and the reasons for disregarding that outcome. It also denied the public an opportunity for public participation. These actions violated articles 10(2) (c), 35, 47 and 232(1) of the Constitution and sections (3), 11(5) and 30 (1)(d) of the Foreign Service Act.
38. The 4 th interested party again argued that the respondents’ decision was irrational and unreasonable. He relied on the decision in Republic v Ministry of Education & 3 others; MGJB (Suing on behalf of a minors, SKG and SKG1 ) (supra) that no reasons were given for the decision to disregard the report of the interview committee.
39. The 4 th respondent maintained that the process of re-advertising the positions differed from the initial recruitment process in that the only thing published was the advertisement published on 10 th November 2023 and the Gazette Notice. The 4 th interested party relied on the decisions in Consumer Federation of Kenya (COFEK) v Attorney General and 2 others (supra) and Kariuki v Board of the Tourism Regulatory Authority & 2 others [2023] KEHC 18453 (KLR) and urged that the re-advertised process was not competitive or transparent and offended articles 10, 35, 47and 232(1) 0f the Constitution and sections 3(3), 11(5) and 30(1) (d) of the Foreign Service Act.
40. The 4 th interested party disagreed with the argument that the petition had been overtaken by events because the appointments were made with the full knowledge of the petition. The appointments were calculated at embarrassing the court and defeating the judicial process which should not be allowed.
41. The 4 th interested party maintained that the respondents having ignored court proceedings and proceeded with an unlawful exercise that did not strip the court of its powers under articles 23, 165 (3) (b) and d(ii) of the Constitution. He argued that there is no employer-employee relationship between the petitioner and the respondents to warrant invocation of the jurisdiction of the ELRC. The 4 th interested party relied on the decisions in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) and Kariuki v Board of the Tourism Regulatory Authority & 2 others (supra).
42. The interested party further relied on the decision in Okello & another v Cabinet Secretary for Industrialization, Trade and Enterprise Development & another; Ngutari & 7 others (Interested parties) [2020] KEELRC 289 (KLR) and urged the court to allow the petition.
Determination
43. I have considered the pleadings, arguments by parties and the decisions relied on. The issue that arises for determination is whether the respondents’ decision to re advertise the positions whose interviews had been conducted, violated the Constitution and the law. The petitioner argued in the affirmative, a position that was supported by the 4 th interested party arguing that the actions violated sections 3(3), 11(5) and 30(1) (d) of the Foreign Service Act and several articles of the Constitution. The respondents took the opposite view, maintaining that the actions were lawful.
44. Section 3 of the Foreign Service Act establishes a foreign service of the Republic of Kenya in the ministry. Subsection (2) provides that the Foreign Service is to be headed by the Cabinet Secretary. Subsection (3) states that in the performance of its functions, the Foreign Service is to be guided by the national values and principles of governance enshrined in the Constitution, international law and customs of diplomatic practice.
45. Section 4 is on the composition of the Foreign Service; section 5 is on the functions of the Foreign Service, while section 6 is on the powers and functions of the Cabinet Secretary.
46. Section 28 which is relevant to this petition, establishes the Foreign Service Academy as a body corporate with perpetual succession and a common seal. It has powers to sue and be sued in its corporate name. The Academy is to be the principal institution for training and capacity building for members of the Foreign Service; it is to undertake foreign policy consultancy, research and analysis for the Service, Government and clients in the private and public sector; develop and conduct periodic evaluation of training programmes to ensure relevance, quality and effectiveness; undertake continuous foreign service training and other programmes to enhance skills, capacity and professionalism of officers. It is to offer induction courses to all newly employed persons to help them transition into a career in the Service; administer entry and promotional examinations within the Service; undertake training of members of the Service before deployment for a tour of duty; conduct examinations for the grant of such professional and academic awards as may be prescribed; develop and maintain a repository of research resources on foreign policy and related issues; develop linkages and collaborations with institutions of learning, professional organizations, private sector and other similar institutions across the world; control the publication and use of research findings of the Service; and perform all other acts necessary for the proper performance of its functions under the Act, Foreign Service which may lawfully be done or performed by a body corporate.
47. Section 30 provides that the Academy is to be governed by a Council comprising of-a Chairperson appointed by the Cabinet Secretary from amongst the persons appointed under paragraph (d); the Principal Secretary in the Ministry responsible for matters relating to foreign affairs or a representative designated in writing; the Principal Secretary in the National Treasury or a representative designated in writing; “three persons competitively recruited and appointed by the Cabinet Secretary, one of whom shall be a person who teaches diplomacy or international relations in a university recognized in Kenya ;” the Secretary of the Public Service Commission; the Director-General of the Kenya School of Government; and the Director-General, who shall be an ex officio member.
48. Subsection (2) provides that a person shall not be appointed to the Council under subsection (1)(d) unless such person—meets the requirements of Chapter Six of the Constitution; possesses a post graduate degree from a recognised university in—international relations; international law; international diplomacy; economics; social sciences; or a relevant field; and possesses experience, knowledge or expertise in matters relating to foreign and diplomatic service.
49. Under subsection (3), the Chairperson and members of the Council appointed under subsection (1)(d), are to hold office for a term of three years from the date of appointment and are eligible for re-appointment for one further term.
50. The petitions, the subject of this petition, related to persons appointed under subsection 30 (1)(d) that is; three persons who are to be competitively recruited. The petitioner argued that the three positions were initially advertised, applications received and interviews conducted but results of the interviews were not made public. Instead, the positions were re-advertised and fresh interviews conducted which, the petitioner argued, violated constitutional principles, the law and rights and fundamental freedoms.
51. The respondents on their part stated that indeed the three positions were advertised and 27 persons were shortlisted and invited for interview, but only 24 attended the interview. The interviewing committee came up with various scenarios to cater for the constitutional principles of gender and regional balance, while still considering merit. One of the scenarios recommended appointment of the 2 nd 3 rd and 4 th interested parties to the position of members of the council.
52. According to the respondents, the initial report was misplaced and was subsequently resubmitted on 11 th April 2024. The 1 st respondent considered the names presented and made a decision to re-advertise the positions to attract a wider pool of candidates. 18 candidates were shortlisted and 16 were interviewed by a new committee with 9 candidates making the minimum mark of seventy five percent. A report was submitted with various proposals on persons to be appointed in compliance with the law. The 1 st respondent considered the outcome of the interview process and selected the suitable persons for appointment which was done. Those appointed were gazetted and assumed office.
53. The petitioner’s argument was that the process of readvertising the positions was not transparent and that those who had been interviewed earlier were entitled to know the result of the interview which was not the case and, therefore, their right guaranteed under article 47 of the Constitution was violated.
54. There is no dispute that the three positions were advertised; applications submitted; applicants were shortlisted and interviews conducted. There is also no denial that results of that interviews were not made public. The respondents’ position was that after considering the proposals on the persons to appoint, the 1 st respondent made a decision to readvertise the positions to attract a wide pool of applicants.
55. The positions, the subject of this petition, are established by statute which requires that appointment of the three members of the Council be competitively done. That means the recruitment has to meet the standards in article 232 of the Constitution namely; fair competition and merit as the basis of appointment and promotion; representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement at all levels of public service, including men and women; members of all ethnic groups and persons with disabilities.
56. The appointments must also take into account the requirement in article 27 of the Constitution that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres and that not more than two thirds of members of elective or appointive bodies should be of the same gender.
57. The respondents stated that the reason why the positions were re-advertised was to attract a wide pool from which selection could be made. Although it would have been appropriate for the respondents to disclose reasons for not proceeding with appointments based on the initial interviews, the petitioner did not argue that the 1 st respondent acted outsider the law and if so, identify the section of the law that was violated.
58. The fact that the positions were re-advertised was in itself an admission that the process of re-advertisement was public and that those who had applied still had a chance to re-apply and be considered. This is contrary to the 4 th interested party’s view that the re-advertisement process was not competitive or transparent. Openness or transparency is a question of fact to be deduced from the circumstances of each case. The fact that members of the public were aware of the re-advertisement and indeed applied, was confirmation that there was an element of transparency. If one individual did not see the readvertisement, that did not mean the process was not open and transparent.
59. The petitioner and 4 th interested party argued that there was no good faith in the readvertisement and that lack of transparency denied the persons who had been interviewed the right to know the outcome of the interview process and the reasons for disregarding that outcome. They also argued that the re-advertisement denied the public an opportunity for public participation in violation of articles 10(2) (c), 35, 47 and 232(1) of the Constitution and sections (3), 11(5) and 30 (1)(d) of the Foreign Service Act.
60. I have considered respective parties’ arguments in this regard. First regarding public participation under article 10 (2) (c), the petitioner and 4 th interested party did not show how public participation was required to be done during the re-advertised process or even how it was done during the first process that the second process failed to comply with that violated article 10 of the Constitution. I have perused the provisions of the Act under which the process is undertaken. The section states that the positions should be competitively filled. Competition takes various forms one of which is to advertise the positions, receive applications and conduct interview from which suitable persons are selected for appointment. The petitioner did not demonstrate that the law was not followed in this respect.
61. Regarding information under article 35, it is worth noting, that article 35 is on access to information. Article 35(1) states that every citizen has the right of access to—(a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
62. The right of access to information must be claimed and lived. That is, a person who seeks to rely on this article must make a request for information from a State agency or private entity. In the case of information from a private entity, the person must show that the information is sought for purposes of realising or enforcing a right-See Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR).
63. Neither the petitioner nor 4 th interested party showed that they had requested for information as required by section 8 of Access to Information Act to enable this court make a determination on the issue. It is not enough for a party to argue that the right of access to information had been violated without demonstrating how so that the court can determine the veracity of the claim.
64. On the argument that article 47 was violated, one must appreciate the import of this article. Article 47 is on the right to fair administrative action. It provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Sub article (2) states that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
65. Article 47 protects rights and fundamental freedoms. These must be rights or fundaments freedoms guaranteed in the Bill of Rights or any other law. This is because under article 19(3)(b) of the Constitution, rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law. In that regard, a party claiming violation of article 47 rights must show that the right is guaranteed under the Bill of Rights or is recognised by law to enable the court assess the claim of such violation.
66. In this petition, although it would have been
[...truncated]