The High Court has declared the appointment of 1,402 revenue services assistants unconstitutional after finding the exercise skewed in favour of Kikuyu and Kalenjin.
MPs Ndindi Nyoro (Kiharu) and Alice Ng'ang'a (Thika Town) backyards got the lion's share of the Kenya Revenue Authority (KRA) positions.
It emerged from Justice William Musyoka's judgment that Kiharu constituency got 40 persons employed by KRA while Thika Town got 50 slots.
Other areas got only one appointee each.
This is why Justice Musyoka found KRA to be an enclave of the big ethnic groups that are ostensibly close to power.
"I am not invited to nullify the recruitment, but to assess whether the process of that recruitment met the standards in Article 232 of the Constitution, as read with the preamble, and Articles 2, 10, 27 and 56 of the Constitution. I find that there was non-compliance, the consequence would be that the recruitment was done in a manner that violated the Constitution, and would be invalid. My hands are tied. I have found that the recruitment did not accord with Article 232(1)(h)) of the Constitution, and, therefore, that rendered the same unconstitutional," ruled Justice Musyoka.
Article 27 of the Constitution guarantees Kenyans not to be discriminated against based on their ethnic background. This was the main contention in the case.
The judgment comes against the backdrop of National Cohesion and Integration Commission (NCIC) raising similar concerns about imbalances within the public service.
Justice Musyoka found that Kikuyu and Kalenjin should have been entitled to 32 per cent of the slots. Instead, they got 56 per cent.
The judge said that the remaining 41 tribes should have got 68 per cent of the slots.
He said KRA has no policy to regulate ethic representation.
"Without clear policy guidelines on these matters, the Kenya Revenue Authority is likely to engage in another recruitment with similar results, something which would entrench a staff establishment heavily skewed in favour of some communities, to the disadvantage of other communities, a situation which would not reflect the aspirations of Kenyans, as emerges from the provisions of the Constitution of Kenya, 2010," he argued.
The case was filed by Peter Orogo.
He sued KRA and Attorney General, arguing that 785 of the 1,406 positions, representing 55.8 per cent of the total recruitment, came from two communities. The other 621 positions, representing 44.2 per cent, came from the rest of the communities.
He averred that that those percentages were not proportionate to the last population census.
According to him, KRA chairman Anthony Mwaura hails from Thika Town constituency in Kiambu County but with roots in Kiharu constituency Murang'a.
He said this explains why Thika and Kiharu constituencies benefited immensely from that recruitment compared to the rest.
For instance, Funyula, Matayos, Teso North, Bomachoge Borabu, Bomachoge Chache, Kitutu Chache, South Mugirango, Kisumu East, Kibwezi East, Kibwezi West and Kilome constituencies got one slot each.
He argued that the two constituencies got a total of 90 slots, which was in excess of what some counties got, such as Busia County which had 13 slots, Kisii County 19 slots and Makueini County 15 slots.
Orogo asserted that awarding the two constituencies associated with Mwaura the lion's share of slots breached constitutional principles on equity, social justice, inclusiveness and protection of the marginalised, good governance, integrity, transparency and accountability.
Mwaura said the exercise attracted many applicants, that physical interviews could not be conducted.
According to him, KRA opted for aptitude tests, and those with the highest scores were recruited.
He claimed the aptitude tests were not interfered with, as the candidates had already been informed that that was going to be the mode of selection.
He claimed that 23,953 applications came from the Kikuyu community and 22,571 were Kalenjin applicants, out of a total of 127,117.
He denied exerting any influence on the recruitment.
On capping the age to 28, he said the programme targets fresh graduates.
