REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO E265 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
ERASTUS K. GITONGA & ANOTHER………………..…..…... PETITIONER
VERSUS
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY…….…... RESPONDENT
JUDGMENT
Petitioners filed the instant Petition simultaneously with a Notice of Motion dated 17th December 2025 under Certificate of Urgency seeking various Injunctive Orders pending the hearing and termination of the application on the one hand and pending the hearing and determination of the Petition.
When the matter came up on 18th December, 2025, the court certified it urgent, directed service upon the Respondent for inter partes hearing on 15th January 2025 and temporarily stayed further disciplinary action against the applicants.
Further directions on the filing of responses and submissions were given on 15th January 2026, 4th March 2026 and 13th April 2026 on availment of hard copies of submissions and a judgment date fixed.
From the foregoing, it is discernible that all prayers sough in the Notice of Motion dated 17th December 2026 are spent and the only outstanding spart of the suit is the main Petition.
The Petitioners alleged that the Respondent violated Articles 10, 19, 20, 21, 22, 27, 28, 41 and 47 of the Constitution of Kenya but did not set out the Constitutional basis of the Petition or the dispute.
The Petitioners allege that the 1st Petitioner was relieved of the acting appointment as Corporation Secretary and Director of Legal Services Grade E2 of the Respondent having held it since 1st July 2023 and were both interdicted vide letter dated 11th December, 2025.
They contend that the interdiction was a disciplinary measure and they were not accorded a fair hearing in accord with the Respondent’s Human Resource Policy and Procedures Manual and Public Service Commission Regulations.
According to the Petitioners, the Respondent had targeted them on account of execution of the Decree in Nairobi ELRC 547 of 2018 Erastus K. Gitonga & 4 others v National Environment Management Authority where the Petitioners were parties and a Garnishee Order Nisi granted by the court was served upon the Respondent on 21st November 2025.
Similarly, on 29th November, 2025 the 93rd Board Meeting of the Respondent’s Board of Directors withdrew their acting appointments positions and scheduled external advertisement to punish them and the court suspended the recruitment vide NAIROBI ELRC JR E083 of 2025 Erastus K. Gitonga v NEMA on 11th December, 2025.
The Petitioner prayed for numerous Declarations numbering eight (8) among other reliefs including certiorari and compensation for unfair labour practices for breach of the Constitution.
The Petitioners pray for declarations that:
(i) The interdiction letters noted 11th December 2015 interdicting them from service amounted to discrimination, victimization, unfair labour practice and violated the constitution.
(ii) Revocation of the 1st Petitioner’s position of Acting Corporation Secretary and Director of Legal Services was discriminatory, unfair Labour practice, violated the principle of legitimate expectation and violated the constitution.
(iii) The Petitioners be deemed to have been lawfully appointed to the positions they were acting in upon expiry of 6 months from the date of appointment in acting capacity on 23rd June 2023 and paid.
(iv) The salary due on account of the underpayment from 23rd December 2023.
(v) An order of Judicial Review Order of certiorari to issue to bring into this court and quash the decision of the Respondent dated 11th December, 2025 interdicting the Petitioners from service.
(vi) An order of Judicial Review Order of certiorari to bring into his court and quash the decision of the Respondent dated 4th December 2025 revoking the appointment of the 1st Petitioner to act as Corporation Secretary and Director Legal Services.
(vii) An Order of Compensation on account of unfair labour practices for infringement of the Constitution.
(viii) Costs of the Petition.
Respondent’s case
In his Replying Affidavit in opposition to the Petition, the Respondent’s Director General deponed that the Petitioners were its employees and the 1st Petitioner was acting as Corporation Secretary and Director Legal Services (hereinafter ACSDLS) and denied having acted unlawfully in revoking the appointment as it was temporary and revocable and the Respondent acted within its mandate.
That acting appointments were subject to periodic review, withdrawal or redesignation as they are not substantive and when the 1st Petitioner was appointed Acting Director Legal Services, he had not attained the mandatory requirements for the position and as such was not convertible to a substantive appointment.
That on acceptance of the position, the 1st Petitioner had no claim to a substantive Deputy Director Legal Services and the interdiction was lawfully undertaken in accord with Clause 15.9 of the Human Resource Manual and Section 70 of the Public Service Commission Act and the interdiction was administrative not punitive and the Petitioners were not condemned unheard and had an opportunity to respond but filed the instant suit.
The affiant admitted having been aware of ELRC No. 547 of 2018 and the Decree but denied that the actions taken were motivated or connected to the suit as it was a lawful process and the decision was made in good faith. The affiant deponed that one of the basic roles of the 1st Petitioner was to provide legal advice to the Respondent and the 2nd Petitioners duties included advising the Respondent on litigation and consequences of Decrees and the interdiction was not selective.
The affiant deponed that the Respondent did not abuse or misuse its power, that it acted lawfully and the Petition was premature and misconceived conceived as internal disciplinary processes had not been exhausted and no constitutional violations had been demonstrated and no reliefs commended themselves.
By a Supplementary Affidavit sworn on 16th February 2026 the 1st Petitioner deponed that having acted for 2 years he had a legitimate expectation of being appointed to the substantive position.
That he attended a competitive interview for the position of Corporation Secretary and Director of Legal Services and was ranked number I and could not envince another interview within 12 months and the Finance & Human Resource Committee of the Board of Direction held a similar view.
That for the internal advertisement for the position of Directors Legal Services he was shortlisted alone and had the minimum qualifications for the position.
That the revocation of acting appointments 2 ½ years later was not coincidental as were the letters of interdiction and periodic review were never conducted.
That interdiction without hearing would appear to suggest that the die had been cast and had occasioned pecuniary loss and discomfort and ought to be lifted.
That being involved in the case he was conflicted and it was handled by an external counsel who had the responsibility of advising the respondent on the matter.
That the respondent acted in bad faith and abused its powers.
Petitioner’s Submissions
On interdiction, counsel submitted that since the Respondent was aware of the conflict of interest occasioned by the suit, it procured external counsel to advise and represent it and questioned the basis of the interdiction. Would the Respondent have believed them if they advised the directors on the matter? Counsel urged that the shifting of advice to the petitioners was absurd and the allegation did not warrant an interdiction as none of the Petitioners was personally handling the matters since 2018.
That a notice to show cause was necessary before interdiction as per the Respondents Human Resource Manual and the Section 70 of the PSC Act cited was not cited by the Letter of interdiction.
On natural justice in accord with the Respondent’s Human Resource Manual, reliance was placed on Ogenga v National Industrial Training & another (2024) KEELRC 908 (KLR) on the import of Article 236(b) of the Constitution of Kenya as were the sentiments of the court in Davis Gitonga Karani v Judicial Services Commission on victimization.
Counsel urged that since the Garishes Order nisi was served on 21st November 2025, the Board Committee Recommended revocation of the 1st Petitioner’s as appointment as acting Director Legal Services on 28th November 2025 and the full Board of Directors withdrew the acting on 4th December, 2025, the interdiction on 11th December 2025, it and was not coincidental and reasonable explanation had been provided.
Reliance was placed on Stephen Ogenga v National Industrial Training Authority & another (Supra) and Gladys Boss Shollei v Judicial Service Commission & another (2014) KEELRC 764 (KLR) on due process in accord with the Constitution.
On holding the Petitioners in acting positions for over 2 years contrary to Section 34(3) of the Public Service Commission Act and Regulation 63 of the PSC Regulations, reliance was placed on Silas Kaumbuthu Mbutura v Meru Central Dairy Corporative Union Ltd (2015) KEERCC 645 (KLR) and Gicheha v Nairobi Water & Sewerage Co. Ltd (2024) KEELRC (1984) (KLR).
On legitimate expectation, counsel cited the fact that the Respondent’s Finance and Human Resource committee of the Board had recommended him for appointment as the substantive Corporation Secretary and Director of Legal Services created a legitimate expectation that he would be appointed having emerged the best candidate after the interview and urged that the revocation of the Acting appointment was contrary to his legitimate expectations.
Reliance was placed on the sentiments of the court in Malaya v Masinde Muliro University of Science & Technology (2025) KEELRC (3005) (KLR).
Counsel urged the court to find that keeping the Petitioners in acting positions for exceedingly long was an unfair labour practice.
On entitlement to reliefs, reliance was placed on the sentiments of the court in Gladys Boss Shollei v Judicial Service Commission (Supra) and Peters on Ndungu & 5 others v Kenya Power & Lighting Co. Ltd (2014) eKLR, to submit that compensatory damages may be awarded in cases of loss of income and violation of constitutional rights.
The decision in Kental Enterprises Ltd v Attorney General & 4 others (2025) KEELRC 18228 (KLR), on exemplary damages, to urge that Petitioners may be awarded exemplary damages.
Respondent’s Submissions
As to whether the Petition was premature, reliance was placed on the decision in Anyango v Attorney General & 2 others (2024) KEHC 254 (KLR), Munga v Kenya Maritime Authority section 9 of the Fair Administrative Action Act, Muthinja & another v Henry & 1756 others (2015) KECA 304 (KLR) and County Public Service Board v Hulbhai Gedi Abdille (2017) eKLR among others to submit that the Petitioners had not exhausted the disciplinary process as provided by statute before approaching the court as the interdiction law lawful and the Respondent act in good faith.
Further reliance was placed on Dry Associates Ltd v Capital markets Authority & another (2012) eKLR and County Government of Nyeri & another V Cecilia Wangechi Ndungu (2015) eKLR among others to urge that courts do not generally interfere with the employer’s human resource functions.
On legitimate expectation counsel cited the decisions in Kenya Revenue Authority v Menginya Salim Murgani (2010) eKLR Communication Commission of Kenya & 5 others v Royal Media Services & 5 others (2014) eKLR, to submit that no clear or unambiguous promise or representation by the Respondent to appoint the 1st Petitioner as the Corporation Secretary and Director of Legal Services and the doctrine of legitimate expectation could not be invoked. That the petitioners case was aspirational.
Reliance was also placed on Section 70 of the Public Service Commission Act on interdiction.
According to Counsel the employer had discretion to determine whom among its employees serves where provided it acted fairly.
As to whether an administrative disciplinary procedure can be commenced by interdiction, counsel submitted that it could and in this case it was intended to facilitate investigations and it was therefore administrative citing the sentiments of the court in Arap Koko v Ethics and Anti-Corruption Commission (2024) KEELRC 271 (KLR) and Fredirck Saundu Amolo v. Principal Namanga Mixed Day Secondary School & 2 others (2014) eKLR and Oyagi v Nairobi City County (2024) KEELRC 736 (KLR) for the proposition that interdiction required justification and procedural fairness to submit that the interdiction in this case was justifiable and lawful.
On reliefs, counsel submitted that the petitioners were seeking reinstatement to the offices they were acting in, counsel cited various decisions on reinstatement as a remedy to urge inter alia that the remedy was discretionary and the acting appointments did not entitle the Petitioners to the positions.
Counsel urged the court not to interfere with ongoing disciplinary proceedings.
Analysis and determination
It is common ground that the Petitioners are employees of the Respondent serving in the position of Senior Principal Legal Officer and Principal Legal Officer respectively in the Legal Services Directorate.
It is equally not in contest that vide letter dated 21st July 2020, the 1st Petitioner was appointed as Acting Deputy Director Legal Services, Grade E 3 and vide letter dated 27th June 2023, he was appointed to act as the Director Legal Services effective 1st July 2023 and served in the capacity until the date of interdiction on 11th December 2025. Significantly, the 1st Petitioner had acted as the Head of Legal Services in 2010 and as Principal Legal Officer in 2013.
Similarly, by letter dated 10th August, 2023 the 2nd Petitioner was appointed to the position of Senior Principal Legal Officer in acting capacity and served as such until the date of interdiction.
Thus, while the 1st Petitioner has acted in two (2) positions for a total of about 4 years and 5 months, the 2nd Petitioner has acted for about 2 years and 4 months which is exceedingly long and ought not to have taken place as it is contrary to the provisions of the Public Service Commission Act.
Section 34 of the Public Service Commission Act provides:
(1) …
(2) A person shall not be appointed to hold a public office in an acting capacity unless the person satisfied all the prescribed qualifications for holding the public office.
(3) An officer may be appointed in an acting capacity for a period of at least thrifty days but not exceeding a period of six months.
Clearly, the duration the Petitioners acted in the offices they were appointed to by the Director General of the Respondent was in violation of the law and no evidence was provided to explain why the positions had not been filled and/or secured approval of extension of the duration by the Public Service Commission in the Circumstances.
It is trite law that retaining an employee in an acting capacity for long period and contrary to the law on acting appointments constitutes an unfair labour practice under Article 41 of the Constitution of Kenya
Records availed by the 1st Petitioner revealed that before 29th May 2025 he was not a Certified Public Secretary under the Certified Public Secretaries Act and thus did not qualify for the position of Director Legal Services Grade E2 and could not be appointed to Act in the position under Clause VI of the Respondent’s Career Guidelines October, 2020. However, he could perform the duties of the officer.
Notably, the 1st Petitioner received commendations and awards from the employer and the Law Society of Kenya Nairobi Branch.
It is trite law that an Acting appointment in a particular position is temporary and must not exceed 6 months. The requirement of 6 months is routinely violated by many state agencies and state corporations including public universities perhaps because there are no sanctions on the board of directors, Council or governing body.
It is not a substantive appointment and does not entitle the holder of the office to confirmation as the substantive holder as that would be contrary to the values and principles of Public Service under Article 232 of the Constitution of Kenya and section 37 of the Public Service Commission Act.
It is not a promise by the employer that the person acting will be appointed to the office at anytime during or after the acting and cannot, in the court view, create a legitimate expectation of appointment to the office and in the case of the Petitioners, the Respondent did not make any promise or representation of appointment to the offices held.
Ordinarily, acting appointments are for a specified duration (6 months) or until the positions is substantively filed whichever occurs earlier and ought to be renewed on expiry vide a resolution of board of directors and written approval of the Public Service Commission.
On revocation of the acting appointments vide letter dated 4th December, 2025 pursuant to a resolution of the Boards 93rd meeting held on 28th November, 2025, the Respondent acted within its mandate and in accord with the terms of appointment which were explicit that the Petitioners would hold the positions from the effective ate until “further notice”. when they would revert to their substantive appointments.
In the courts view, the Respondent did not abuse its powers. The petitioners held the positions at the discretion of the Respondent’s board of directors.
The foregoing notwithstanding, documentary evidence reveals that Respondent had advertised various positions internally.
At its 89th meeting on 30th October, 2025, the Respondents Finance & Human Resource Committee of the Board recommended that the 1st Petitioner be considered for the position of Director of Legal Service/Corporation Secretary but had met the qualifications for the position of Deputy Director. Legal services which the committee recommended to be advertised externally.
Similarly, at its 61st meeting held on 15th October 2025, the Finance & Human Resource Committee of the Respondent’s Board recommended confirmation of the 1st Petitioner to the position of Corporation Secretary/Director Legal Services, Grade 2 on the Premises that he had been acting, was the most senior officer in the Directorate, was interviewed emerged best but lacked certification as public secretary at the time and was passionate and competent. One director disagreed on the ground that the position ought to have been re-advertised and 1st Petitioner ought to have been considered for the position of Deputy Director Legal Services.
None of the parties filed documentation on consideration of the committee’s recommendation by the Board of director or the outcome.
Significantly, recommendations of board committees are not binding on the board of directors and may be accepted unconditionally or subject to conditions or be rejected all-together.
It is important to underline the fact that during the interview at which the 1st petitioner emerged as the best candidate he did not meet the minimum qualifications for the position of Director Legal Service/Corporation Secretary.
The interview was a nullity at initio and ought not to have taken place. Only candidates who meet the prescribed minimum qualifications for the position are eligible to proceed to the next stage of the recruitment process. The Respondent ought to have re-advertised the position to accord interested applicants including the 1st petitioner an opportunity to apply.
Significally, there is no confirmation of appointment in post. Constitution of Kenya 2010, irrespective of the number of years a public officer has acted in the position. In the courts view, the 1st petitioner had no claim to the position of Director Legal Services/Corporation Secretary because the interview he participated in was a nullity for want of minimum qualification for the position as minutes of the finance and Human Resource Committee showed.
On the acting appointment as Corporation Secretary and Director Legal Service, the 1st Petitioner was not qualified to act in the position until he became a Certified Public Secretary on 29th May, 2025 and thus only acted in the position for about 6 months.
Puzzlingly, the 2nd Petitioner tendered no evidence to prove that the position he was acting in had been advertised, he applied and was not appointed.
As to whether the instant Petition is premature, parties adopted contrasting positions with the Respondent maintaining that the Petitioners would have been accorded an opportunity to respond and in any case the interdiction was administrative not disciplinary.
It is correct that the Respondents Human Resource Policy and Procedures Manual, October 2020 provided for interdiction of an employee at the instance of the Director General for purposes of investigations where proceedings may lead to dismissal.
The letter of interdiction dated 11th December, 2025 made reference to the Respondent’s Human Resource Police as it justification. Under Section 70 of the Public Service Commission Act an authorised officer may interdict a public officer where public interest required it, where proceedings may lead to dismissal are being taken or about to be taken or criminal proceedings are being instituted against a public officer.
This provision evinces very grave instances where public interest justifies interdiction.
Noteworthy, at the conclusion of its submissions, the Respondent urged the court not to interfere with ongoing disciplinary process and the terms of interdiction were clear namely ½ basic salary, house and medical benefits, handover of the Respondent’s property. These were punitive steps and imposed before the petitioners had been requested to explain or comment on the allegations.
The Petitioners’ apprehension was occasioned by the fact that the Respondent undertook the actions complained of within a short time after the Respondent received the Garnishee Order nisi in the suit the Petitioner and 2 others had sued the Respondent over allowances and obtained judgment against the Respondent.
The Petitioners perceived it as victimization and the die appeared to have been caste and did not envision a fair process.
Relatedly, the allegations of negligence related to the same case.
From the letter of interdiction, it is discernible that the Respondent’s board of directors was incensed by the reality that the Respondent’s bank account at Gateway Branch was attached and it took the intervention of the Attorney General and blamed the Petitioners exclusively for it.
The charge was the same, failure to notify the Director General the consequences of the Garnishee Order nisi in good time and withdrawal of Kshs.16000,000.00 deposited in a joint escrow account without attention and consent of the Respondent. That the Petitioners were negligent contrary to Clause 15.13 of the Human Resource Police and Procedures Manual. Was the Petitioner’s apprehension justified?
The court is persuaded that they were. The occurrences after service of the Garnishee Order nisi upon the Respondent heralded the steps taken by the Respondent’s board of directors and the petitioners were justified in their perception that the Respondent would not subject them to a fair process. Evidently, the actions taken by the Respondent’s board of directors were not coincidental. The Respondent’s board of directors could not countenance a Garnishee Order nisi at the instance of its employees.
A threatened violation of a fundamental freedom or right is enforceable under Article 22 of the Constitution of Kenya. In the courts view, the petition was not premature.
As to whether the interdiction was justifiable the Respondent contended that it was a legitimate method of commencement of disciplinary proceedings and it was preventative. The Petitioners submitted that they were not only victimized but were also denied due process before the drastic step was taken.
To determine whether the interdiction was justified or amounted to victimization, it is crucial to delve into the genesis of the allegations or charges of negligence.
Briefly, the Petitioners and other employees sued the Respondent in ELRC No. 547 of 2018 and obtained judgment against the Respondent on 10th April, 2019. The Respondent filed a Notice of Appeal and provided security, a total of Kshs.16,000,000.00 which was deposited in account in the name of counsels on record.
The Garnishee Order nisi was granted on 29th September 2025 but service was not effected until November 2025.
The Respondent was represented by M/s Mwaura Wachira & Co. Advocates and on that date one Kanimu Advocate was in court.
On 6th May, 2025, the court directed that the Kshs.16,000,000.00 be released to the claimant’s advocate and the Party and Party Bill of costs was taxed on 16th June, 2025 and warrants issued for the balance.
On 26th November 2025, the Attorney General’s office filed a Notice of Motion under Certificate of Urgency seeking the lifting of the Garnishee Order nisi.
The court record is unclear as to when the Garnishee Order nisi was lifted or dealt with.
It is trite that being parties to the suit the petitioners were conflicted and could not be actively involved in the matter and the Respondents board of directors had legal representation in the matter.
In Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Ltd (2017) KEEA 431 (KLR) the Court of Appeal stated:
“The nexus between the advocate and his or her client is the Advocate client relationship which springs from instructions by the client to the advocate.”
Significantly, the Respondent did not deny that it instructed a firm of Advocates to represent it in the matter or that the Petitioners did not declare conflict of interest. Clearly, the Respondent was aware of the suit in court and the judgment against it.
Strangely, the Respondent’s board of directors blamed the Petitioners for want of advice it ought to have received from its advocate on record. The Respondent tendered no evidence of any action taken or update from its advocate from 29th September 2025 when the Garnishee Order nisi was issued against its bank account to 21st November 2025 when the Order was served on it. In such cases the Director General is the contact person and the failure to advice the board of directors is largely attributable to him.
One of the cardinal duties of an advocate instructed by a client is to represent the client effectively in the matter, apply himself, or herself act professionally, diligently, and take the necessary steps to safeguard the client’s interests. The advocate is bound to keep the client informed of all occurrences in court and in particular where orders have been made for or against the client or where specific steps ought to be taken. This duty is as weighty as the advocate’s duty to assist the court by maintaining fidelity to the law and avoiding emotional entanglement with the ebb and flow of the client’s case (see Leonard Mambo Kuria v Ann Wanjiru Mambo (2017) KECA 782 (KLR).
This duty does not however make the matter or case that of the advocate. It remains the client’s matter or suit and the client obligated to keep a tab on the matter by contacting the advocate for regular status updates.
In Bi-Mach Engineers Ltd v James Kahoro Mwangi (2011) KECA 242 (KLR) Waki JA held:
“The applicant had a duty to pursue his advocate to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue the matter. If the advocate was simply guilty of inaction that is not an in excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate…”
The foregoing sentiments leave no doubt that where at litigant has instructed an advocate to represent him or her in a particular case, over and above the advocate’s professional duties to the litigant, the litigant is also duty bound to follow up and seek regular updates from the advocate.
In the instant case, since the Respondent had engaged a law firm to represent it for among other reasons, the fact that the petitioners were conflicted. The law firm was obligated to advice the Respondent on all aspects of the case at all stages and the Respondent could not reasonably expect any unsolicited advice from the Petitioners who were its adversaries in the case.
Intriguingly, the Garnishee Order nisi was granted on 29th September 2025 in the presence of the Respondent’s advocate and the Respondent deponed nor has neither submitted that it was not advised by its advocate accordingly.
Clearly, the failure by the Respondent’s advocate on record to update the respondent on the Garnishee Order nisi if that was the case, or its failure to follow up with its advocate, typically instigated by the Chief Executive Officer of the organization, was in the courts view not attributable to the petitioners who were the petitioners in the case.
Similarly, the second charge, alleged withdrawal of Kshs.16,000,000.00 from the joint account without attention and consent of the authority was an inseparable from the case.
As adverted to elsewhere in this after judgment was delivered on 10th April, 2019 in favour of the claimants, the Respondent lodged a Notice of Appeal and moved the Court for stay of execution and a conditional stay was granted and a total of Kshs.16,000,000.00 was deposited in a joint of account in the name of the advocates on record and on 6th May the court directed that the amount of Kshs.16,000,000.00 be released to the claimant’s advocate. What emerges is that no appeal was lodged.
It is trite law that any amount deposited as security, be it in court or in a Bank account in the name of the advocates is dealt with in accordance with the court’s directions and consent of the employer is not required.
It is the security provided by the judgement debtor to enable it pursue its appeal.
The accusation had no factual or legal basis, and the Respondent’s board of director was aware of that fact bearing in mind that no appeal appears to have been filed even after extension of stay of execution on 11th February 2021 and taxation of the claimant’s Party to Party Bill of costs on 16th June 2025.
A Panoramic view of the facts of this case and the letter of interdiction in particular reveals that the Respondent’s board of directors was unhappy with the suit filed by the Petitioners against the Respondent and service of the Garnishee Order nisi on the Respondent on 21st November 2025 was the last straw.
It is trite that update on litigation by or against a state corporation or indeed a registered company is typically a live issue before board and board committee meetings because of its impact on the operations and finances of the organization and the Respondent’s board of directors could not feign ignorance of the fact of this case.
They were aware that there was a judgment and decree against the Respondent and as adverted to elsewhere in this judgment had an advocate on record representing it in the case from whom it was entitled to request for updates because the Petitioners were conflicted, a fact the Respondent appreciated.
From the foregoing, the irresistible finding of this court is that the petitioners were victimized for having sued the Respondent and regrettably won the case against their employer.
All the actions the Respondent took against the petitioners after service of the Garnishee Order nisi were deliberately intended to punish them for daring to sue and win a case against the Respondent.
Minutes of the Finance and Human Resource Committee of the board clearly show how it perceived to 1st petitioner before November 2025. They characterized him as a diligent and reliable employee capable of executing the duties and responsibilities of the office of Corporation Secretary and Director Legal Services of the Respondent.
It required no emphasis that victimization of an employee on account of having sued the employer cannot constitutes a fair labour practice. It bonders, discriminatory treatment. The employee’s right to fair labour practices under article 41 of the Constitution of Kenya is a constitutional imperative. What amounts to fair labour practice is a question of fact and law.
In the end, the court is satisfied that the Petitioner’s case of victimization is sustainable.
The Petitioners prayed for a wide panoply of orders and the court proceeds as follows;
Having found that the interdiction of the petitioners vide letters dated 11th December 2025 amounted to victimization and a violation of their right to fair labour practices, a declaration to that effect is merited.
Second, having found that the 1st Petitioner was not qualified to hold the office of Corporation Secretary Director of Legal Services before 29th May, 2025, and thus had only acted in that office for about 6 months the revocation of appointment to the position did not violate his constitutional rights nor was it discriminatory and no legitimate expectation could have arisen after the short period of service and no promise had been made. The declaration is unmerited.
As adverted to above, and contrary to the 1st Petitioner’s avernments and submissions by counsel, the 1st Petitioner did not act in the position of Corporation Secretary Director of Legal services for 2 years for the simple reason that when he was purportedly appointed to act on 27th June, 2013 effective 1st July 2023 with an acting allowance of 20% of the basic salary, he was not a Certified Public Secretary of Kenya a mandatory requirement under Cause VI of the Respondents Career Guidelines, October 2020. He was not eligible for appointment to that post. The appointment violated section 34 (2) of the Public Service Commission Act and Clause 14(1) of the Public Service Commission Human Resource Polices and Procedures Manual 2016 and the 20% acting allowance paid was illegal. The 1st petitioner was entitled to special duty allowance at 15% of his basic salary until 29th May, 2025 when he qualified for acting allowance at 20% of his basic salary.
In the case of the 2nd petitioner, the Respondent tendered no evidence to show that he was not qualified to act in the higher office and the 2nd Petitioner did not allege that he had been interviewed for the position prior and was not appointed and no reason was provided.
The Respondents decision to advertise the position was consistent with the dictates of the Constitution of Kenya 2010 and the provisions of the Public Service Commission Act. The declarations sought are unmerited.
Having found as above, a declaration that 1st Petitioner be deemed to have been lawfully appointed to the position of Corporation Secretary Director Legal services upon expiry of six months from 1st July 2023 is unavailable because the 1st Petitioner was not initially eligible for appointment to the position and was thus not acting in law, the appointment notwithstanding. He was performing the duties of the office. More fundamentally, a public officer cannot be deemed to have been appointed to office by dint of long acting in the position as it would be in violation of the constitution of Kenya and the provisions of the Public Service Commission Act. The declaration is disallowed and the same fate befalls the purported under payment of salary as there was none.
A similar order applies to the declaration that the 2nd petitioner be deemed to have been lawfully appointed to the position of Senior Principal Legal Officer (Grade E4). This is because the declaration would be in violation of the Constitution of Kenya and in particular Article 232 and Section 37 of the Public Service Commission Act and the same fate befalls the prayer for underpayment of salary.
While confirmation into positions in public service was possible before the Constitution of Kenya 2010, the post 2010 dispensation is different and confirmation is not possible.
On the judicial review order of certiorari, having found as above, the relief is merited and is hereby issued to bring into this court and quash the decision of the Respondent dated 11th December 2025 interdicting the 1st Petitioner and the 2nd Petitioner.
However, having found that the acting appointments subsisted until further notice, it was revocable by the authorized officer if the Respondent’s board of directors so resolved.
The prayer for certiorari to quash the revocation of the acting appointments of the 1st petitioner is declined and as adverted to elsewhere in this judgment an acting appointment is temporary and the public officer performs the duties of a higher office than he or she substantively holds while holding the substantive appointment. Thus, termination or revocation of an acting appointment means that the employee reverts to the substantive position and payment of acting allowance ceases.
On compensation or damages, having found that the Respondent victimized, the Petitioners unjustifiably and thus violated their right to fair labour practices, the petitioners are entitled to damages under Article 23 (3) of the Constitution of Kenya, and bearing in mind that the petitioners are still employees of the Respondent and will resume duty forthwith, the award of Kshs.100,000.00 each is in the court’s view sufficient.
In the upshot judgment is entered in favour of the petitioners against the Respondent in the following terms;
(a) Declaration that the interdiction of the petitioners vide letters dated 11th December 2025 amounted to victimization and unfair labour practice.
(b) Judicial Review Order of certiorari to bring into this court and quash the Respondent’s decision dated 11th December 2025 interdicting the 1st and 2nd Petitioner.
(c) Award of Kshs.100,000.00 to the 1st Petitioner.
(d) Award of Kshs.100,000.00 to the 2nd Petitioner.
(e) Interest at court rates from date hereof till payment in full.
(f) Costs of the suit at ½ scale.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF MAY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI PETITION E265 OF 20252 OF 38 |