gazette notice number 3586 dated 20th May, 2014. Though the applicant lodged a complaint
with the Commission on Administration of Justice (CAJ) seeking its intervention nearly (6)
months following the aforesaid selection process, he had not received reprieve either from
C.A.J or any of the respondents. Further, despite the express demand by CAJ of the selection
panel to give reasons for the applicant’s exclusion from the published list of the shortlisted
candidates as well as all the applicants for the vacancies, they have in utter impunity failed
to do so.
15. The applicant based on legal advice believed that under Article 47(2) of the Constitution of
Kenya 2010, where a right or fundamental freedom has been or is likely to be adversely
affected by administrative action, the person has the right to be given written reasons for
the actions; yet the respondents failed to abide by this constitutional obligation. He was
further aggrieved that his constitutional right to equality and freedom from discrimination
especially equal benefit of the law as enshrined in Article 27 (1) was violated by the
respondents and interested parties when they, without good reason failed to consider his
application on the merits and in failing to do so or in the least even to publish his name as an
applicant for the said vacancies, the selection panel violated his right to human dignity as
enshrined in Article 28 of the Constitution particularly after being nominated by ICTAK, the
lead professional body in the communication sector in Kenya. To the applicant, being
youthful person, he expected fair treatment pursuant to the provisions of Section 6B (10) of
the Act as well as Article 55 (b) of the constitution, but instead, the selection panel
disregarded the said provisions. It was therefore the applicant’s contention that the totality
of the actions of the 1st Respondent in appointing the Interested Parties to the board
are ultra vires the provisions of the Act, are irrational, unconstitutional; illegal; are tainted
with bias and are in flagrant disregard for the rule of law for the above reasons hence the
orders sought.
16. In clarifying the source of his grievance the applicant set out what in his view was a
chronology of events leading to the appointment as follows:
i.
The Kenya information and communications (Amendment) Act, 2013 under which the
appointments were made, commenced on 2nd January 2014.
ii.
The process leading to the subject appointments was to be triggered by the occurrence of a
vacancy in the position of the chairman or a member of the 2nd respondent’s board.
iii.
The occurrence of a vacancy under the transitional provisions of the act under section 4(1)
of the Act was predicated upon either one of two events. First was the expiry of ninety (90)
days in office for a member of the board of the former body (after commencement of the
act) or secondly the appointment of the members of the authority whichever came first.
iv.
The expiry of ninety days post the commencement of the act was on 2nd April 2014.
v.
The appointment of the 2nd to 8th interested parties was done vide gazette notice number
3586 dated 20th May, 2014.
vi.
The occurrence of the vacancies as per the act was thus 2nd April 2014 seeing that it came
earlier than the appointments which were done on 20th May 2014.
vii.
Pursuant to Section 6B (1) (a) and (b) the 1st Respondent was required to declare vacancies
in the 2nd Respondent’s board within fourteen days of 2nd April 2014 – the occurrence of the