Law Society of kenya v Cabinet Secretary for Tourism and Wildlife & 2 others; Kevin Muasya & 4 others (Interested Parties) [2020] eKLR Case Summary

Case Brief: Law Society of kenya v Cabinet Secretary for Tourism and Wildlife & 2 others; Kevin Muasya & 4 others (Interested Parties) [2020] eKLR


1. Case Information:
- Name of the Case: Law Society of Kenya v. The Cabinet Secretary for Tourism and Wildlife & Others
- Case Number: Petition 129 of 2020 (EO25 of 2020)
- Court: Employment and Labour Relations Court at Nairobi
- Date Delivered: 22nd October 2020
- Category of Law: Civil
- Judge(s): Hon. Justice Hellen S. Wasilwa
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
- Whether the court has jurisdiction to hear the application and petition regarding the appointment of members to the Tourism Regulatory Authority Board.
- Whether the petitioner has established an arguable case with a likelihood of success warranting the issuance of interim orders to suspend the appointments of the interested parties.

3. Facts of the Case:
The petitioner, the Law Society of Kenya, challenged the validity of appointments made by the Cabinet Secretary for Tourism and Wildlife to the Tourism Regulatory Authority Board, as outlined in Gazette Notice Vol CXXII - NO. 150 No. 5462. The petitioner argued that the appointments were made without adhering to the constitutional and statutory requirements for public service appointments, which necessitate open, competitive, merit-based processes. The petitioner contended that the appointments infringed upon constitutional provisions and lacked necessary public participation. The interested parties, appointed members of the Board, included individuals who were allegedly not qualified for the positions, raising concerns about potential harm to the public interest.

4. Procedural History:
The petitioner filed an application on 11th August 2020, seeking various interim orders, including the suspension of the Gazette Notice appointing the interested parties. The application was opposed by the respondents, who argued that the court lacked jurisdiction and that the appointments were lawful under the Tourism Act. The case progressed with the filing of affidavits and written submissions from both parties, culminating in a ruling by the court.

5. Analysis:
- Rules: The court considered relevant constitutional provisions, including Articles 1, 2, 10, 27, 47, 73, and 232, which mandate fair and competitive processes for public appointments. The court also referenced Section 8 of the Tourism Act 2011 regarding the appointment of Board members.
- Case Law: The court referred to the case of Giella v. Cassman Brown & Company Limited [1973] EA 358, which outlines the criteria for granting conservatory orders, emphasizing the need for an arguable case, potential irreparable harm, and the balance of convenience.
- Application: The court found that the petitioner had established a prima facie case regarding the legality of the appointments and the potential for irreparable harm to the public interest if the appointments were allowed to stand. The court emphasized that the respondents did not sufficiently demonstrate compliance with the necessary recruitment processes.

6. Conclusion:
The court ruled in favor of the petitioner, confirming interim orders to suspend the Gazette Notice appointing the interested parties as members of the Tourism Regulatory Authority Board. The decision underscored the importance of adhering to constitutional and statutory requirements in public appointments, emphasizing the need for transparency and public participation.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The court's ruling in Law Society of Kenya v. The Cabinet Secretary for Tourism and Wildlife & Others reinforced the necessity for lawful and transparent processes in public service appointments. The decision serves as a reminder of the judiciary's role in safeguarding constitutional principles and protecting public interest in governmental actions. The ruling has broader implications for future appointments within public bodies, emphasizing adherence to established legal frameworks.