REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC JUDICIAL REVIEW NO E036 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
HUMPHREY NAKITARI …………………………………….. PETITIONER
VERSUS
BOARD OF DIRECTORS NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND …………………………………….……….. RESPONDENT
RULING
Before the court for determination is the Applicant’s Notice of Motion dated 26 th May 2026 filed under Certificate of Urgency seeking orders that:
1. Spent.
2. This Honourable court be pleased to review and set aside its orders of 29 th April 2026 and in its place make the following orders:-
a) Pending the hearing and determination of this suit the Honourable court be pleased to maintain the status quo in the appointment of the Interested Party ALI ISAAK AHMED as the Director Corporate Services of the National Affirmative Action Fund.
b) HUMPHREY NAKITARI be directed by an order of this court to continue in his role as Principal Communications Officer of the National Government Affirmative Action Fund pending the hearing and determination of this suit.
3. Pending the hearing and determination of this suit this Honourable court be pleased to stay further proceedings of the contempt of court proceedings instituted by the applicant vide the Notice of Motion application dated 13 th May 2026.
4. Pending the hearing and determination of this suit this Honourable court be pleased to stay execution of its orders issued on 29 th April 2026.
5. The costs of tis application be provided for.
The motion is expressed under provisions of the Constitution Government Proceedings Act, Law Reform Act, Civil Procedure Act and the Civil Procedure Rules and is based on the grounds enumerated on its face and the Supporting Affidavit of ALI ISSACK AHMED sworn on 26 th May 2026.
The applicant’s case is that he participated in a competitive recruitment exercise for the position of Director Corporate Services of the Respondent, emerged number 2 and was appointed based on age and ethnicity as affirmative action issued with an appointment letter on 10 th April 2026 and assumed office and the orders of 29 th April 2026 came 19 days after he had assumed office.
That the respondent sought advice of the Attorney General vide letter dated 8 th May 2026. The affiant deposes that the orders issued on 29 th April 2026 had greatly prejudiced him and had precipitated a contempt of court application.
Response
The Applicant responded vide a Replying Affidavit, sworn on 5 th June 2026 deponing that application was a further response to a contempt application dated 13 th May 2026 and an admission of disobedience of court orders.
That the Interested Party had annexed a backdated and unsigned letter of appointment dated 2 nd April, 2026 to deceive the court that the appointment was made on 2 nd April 2026. That on 9 th April 2026 counsel for the Respondent misguided the court by stating that the Interested Party had assumed office, but was appointed thereafter.
Paragraphs 11, 13, 14, and 15 of the Replying Affidavit relate to contempt of court as apposed to the instant application.
By a Further Affidavit sworn on 15 th June 2026, the applicant deponed that the Respondent had failed to controvert the applicant’s averments and had not responded to the allegation of misleading the court that he was acting in the Office of Director Corporate Services yet he was the Principal Communications Officer and had not explained why he participated in the interview he was challenging.
The Interested Party deponed that the appointment letter was dated 2 nd April 2026 but it was signed on 10 th April 2026 when the board chairperson issued a memo to the Chief Executive Officer to sign the contract which explained the unsigned letter of appointment.
That the Chief Executive Officer employed delaying tactics to frustrate the Interested Party’s appointment. That the Interested Party was not represented in court on 9 th April 2026 by counsel. The Interested Party further deponed that the Chief Executive Officer of the Respondent was in serious breach of the Respondent’s Data Protection and access policy by availing personal data, including salaries paid to staff.
I have considered the submissions on record from the parties.
The applicant herein the Interested Party’s seeking the review and setting aside of the orders made on 29 th April 2026 which temporarily stayed the recommendation and appointment of the Interested Party as the Respondent’s Director, Corporate Services.
From the facts on record, it is surmisable that the Interested Party was appointed to the position vide letter dated 10 th April 2026, one (1) day after the court had issued directions on the filing of the Respondent’s response, right of reply, filing and exchange of submissions and a ruling on 29 th April 2026.
The court, notes that motion dated 7 th April 2026 was based on the processes leading to the recommendation of the Interested party as the Director Corporate Services and subsequent appointment.
The singular issue for determination is whether the instant application is merited.
The principles that govern the review of orders, judgments and rulings are well settled.
Under section 16 of the Employment and Labour Relations Court Act;
“The court shall have power to review its judgments awards orders or decrees in accordance with the Rules.”
Under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024.
(1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling.
(a) If there is discovery of a new and important matter or evidence which despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;
(b) On account of some mistake or error apparent on the face of the record;
(c) If the judgment or ruling requires clarification; or
(d) For any other sufficient reason.
(2) …
(3) …
(4) The court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.
(5) Where an application for review is granted, the court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.
(6) An order made for a review of a decree or order shall not be subject to further review.
The instant application was filed within one (1) month after the orders sought to be reviewed and set aside were made, and thus was filed within reasonable time.
Granted that the applicant has not cited discovery of a new and important matter or evidence, mistake or error apparent on the face of the record or clarification of the order, the only applicable ground is “any other sufficient reason” under paragraph 74 (1) (d) of the Rules.
In Sadar Mohamed v Charan Singh (1959) EA , Farrel J held that the court had unfettered discretion to make such order as thinks fit on an application for review. However, in Yusuf v Nokareh (1971) EA 104, Chanan Singh J held that the words “any other sufficient reasons” meant sufficient reason analogous to those in the rule.
In Wangechi Kimita & another v Mutahi WAkabiru CA Nol. 80 of 1985 it was held that:
“any other sufficient reason” need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act. The court further went on the hold that the other grounds set out in the rule did not in themselves form a genus or class of things with which the third general head could be said to be analogous.
In Chanzu Investments Ltd v Commissioner of Lands (1993) KECA 36 (KLR) the Court of Appeal held;
“The current position would then, appear to be that the court has unfettered discretion to review its own decrees or orders for any sufficient reason.”
See also Swai v Kenya Breweries Ltd (2014) KECA 883 (KLR).
The applicant’s averment and submission is that the participated in a lawful, transparent and competitive recruitment process for the position of the respondent’s Director, Corporate Services, was nominated by the Respondent’s Board of directors and appointed vide letter dated 10 th April 2026, and the court orders were issued nineteen (19) days thereafter and the appointment had taken effect.
From the averments by both parties, it is surmisable that Mr. Humphrcy Nakitari was not acting in the position of Director Corporate Services on 10 th April 2026 and had no reason to complain about until the court made the orders on 29 th April 2026. Indeed, this is fortified by the fact that the application for contempt of court was dated 13 th May 2026.
It is noteworthy that when Mr. Humphrey Nakitari swore the Supporting Affidavit to the Main Motion, the appointment of the Applicant, herein had not crystalized and the affidavit was silent on the date of appointment or assumption of office.
Puzzlingly, in his Further Affidavit sworn on 21 st April 2026, Mr. Humphrey Nakitari did not indicate that the applicant had been appointed and assumed office. These were facts within his knowledge as an employee of the Respondent and the applicant’s colleague.
However, most intriguing is the fact that Mr. Humphrey Nakitari did not allege that the applicant had already taken up the position he was acting in and there was no competition for the position. Similarly, Mr. Humprey Nakitari’s Supporting Affidavit sworn on an undisclosed date in support of the motion dated 27 th April 2026 did not disclose the position the Applicant was holding yet the Respondent’s Board of directors intended to appoint him as the acting Chief Executive Officer, a development Mr. Humphrey Nakitari was opposed to.
Finally, in his Supporting Affidavit sworn on 13 th May 2026 in support of the application for contempt of court of even date, Mr. Humprey Nakitari did not indicate or allege that the Applicant herein was appointed and assumed office after 29 th April 2026. To the contrary, he deponed the Interested party continued to occupy the office of the Director Corporate Services with full knowledge and approval of the Respondent, thereby admitting that appointment and assumption of office by the Interested Party had already taken place by the time the court issued the orders on 29 th April 2026.
The foregoing analysis leave little doubt that court issued the temporary orders ex post facto. Put in the alternative, the horse had bolted, rendering the court orders ineffectual.
Flowing from the foregoing, it is discernible that there is no justification to sustain the orders dated 29 th April, 2026.
Consequently, the order is hereby set aside.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31 ST DAY OF APRIL, 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 15 th March 2020 and subsequent directions of 21 st 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
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IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC JUDICIAL REVIEW NO E036 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
HUMPHREY NAKITARI …………………………………….. PETITIONER
VERSUS
BOARD OF DIRECTORS NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND …………………………………….……….. RESPONDENT
RULING
Before the court for determination is the Applicant’s Notice of Motion dated 26 th May 2026 filed under Certificate of Urgency seeking orders that:
1. Spent.
2. This Honourable court be pleased to review and set aside its orders of 29 th April 2026 and in its place make the following orders:-
a) Pending the hearing and determination of this suit the Honourable court be pleased to maintain the status quo in the appointment of the Interested Party ALI ISAAK AHMED as the Director Corporate Services of the National Affirmative Action Fund.
b) HUMPHREY NAKITARI be directed by an order of this court to continue in his role as Principal Communications Officer of the National Government Affirmative Action Fund pending the hearing and determination of this suit.
3. Pending the hearing and determination of this suit this Honourable court be pleased to stay further proceedings of the contempt of court proceedings instituted by the applicant vide the Notice of Motion application dated 13 th May 2026.
4. Pending the hearing and determination of this suit this Honourable court be pleased to stay execution of its orders issued on 29 th April 2026.
5. The costs of tis application be provided for.
The motion is expressed under provisions of the Constitution Government Proceedings Act, Law Reform Act, Civil Procedure Act and the Civil Procedure Rules and is based on the grounds enumerated on its face and the Supporting Affidavit of ALI ISSACK AHMED sworn on 26 th May 2026.
The applicant’s case is that he participated in a competitive recruitment exercise for the position of Director Corporate Services of the Respondent, emerged number 2 and was appointed based on age and ethnicity as affirmative action issued with an appointment letter on 10 th April 2026 and assumed office and the orders of 29 th April 2026 came 19 days after he had assumed office.
That the respondent sought advice of the Attorney General vide letter dated 8 th May 2026. The affiant deposes that the orders issued on 29 th April 2026 had greatly prejudiced him and had precipitated a contempt of court application.
Response
The Applicant responded vide a Replying Affidavit, sworn on 5 th June 2026 deponing that application was a further response to a contempt application dated 13 th May 2026 and an admission of disobedience of court orders.
That the Interested Party had annexed a backdated and unsigned letter of appointment dated 2 nd April, 2026 to deceive the court that the appointment was made on 2 nd April 2026. That on 9 th April 2026 counsel for the Respondent misguided the court by stating that the Interested Party had assumed office, but was appointed thereafter.
Paragraphs 11, 13, 14, and 15 of the Replying Affidavit relate to contempt of court as apposed to the instant application.
By a Further Affidavit sworn on 15 th June 2026, the applicant deponed that the Respondent had failed to controvert the applicant’s averments and had not responded to the allegation of misleading the court that he was acting in the Office of Director Corporate Services yet he was the Principal Communications Officer and had not explained why he participated in the interview he was challenging.
The Interested Party deponed that the appointment letter was dated 2 nd April 2026 but it was signed on 10 th April 2026 when the board chairperson issued a memo to the Chief Executive Officer to sign the contract which explained the unsigned letter of appointment.
That the Chief Executive Officer employed delaying tactics to frustrate the Interested Party’s appointment. That the Interested Party was not represented in court on 9 th April 2026 by counsel. The Interested Party further deponed that the Chief Executive Officer of the Respondent was in serious breach of the Respondent’s Data Protection and access policy by availing personal data, including salaries paid to staff.
I have considered the submissions on record from the parties.
The applicant herein the Interested Party’s seeking the review and setting aside of the orders made on 29 th April 2026 which temporarily stayed the recommendation and appointment of the Interested Party as the Respondent’s Director, Corporate Services.
From the facts on record, it is surmisable that the Interested Party was appointed to the position vide letter dated 10 th April 2026, one (1) day after the court had issued directions on the filing of the Respondent’s response, right of reply, filing and exchange of submissions and a ruling on 29 th April 2026.
The court, notes that motion dated 7 th April 2026 was based on the processes leading to the recommendation of the Interested party as the Director Corporate Services and subsequent appointment.
The singular issue for determination is whether the instant application is merited.
The principles that govern the review of orders, judgments and rulings are well settled.
Under section 16 of the Employment and Labour Relations Court Act;
“The court shall have power to review its judgments awards orders or decrees in accordance with the Rules.”
Under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024.
(1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling.
(a) If there is discovery of a new and important matter or evidence which despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;
(b) On account of some mistake or error apparent on the face of the record;
(c) If the judgment or ruling requires clarification; or
(d) For any other sufficient reason.
(2) …
(3) …
(4) The court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.
(5) Where an application for review is granted, the court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.
(6) An order made for a review of a decree or order shall not be subject to further review.
The instant application was filed within one (1) month after the orders sought to be reviewed and set aside were made, and thus was filed within reasonable time.
Granted that the applicant has not cited discovery of a new and important matter or evidence, mistake or error apparent on the face of the record or clarification of the order, the only applicable ground is “any other sufficient reason” under paragraph 74 (1) (d) of the Rules.
In Sadar Mohamed v Charan Singh (1959) EA , Farrel J held that the court had unfettered discretion to make such order as thinks fit on an application for review. However, in Yusuf v Nokareh (1971) EA 104, Chanan Singh J held that the words “any other sufficient reasons” meant sufficient reason analogous to those in the rule.
In Wangechi Kimita & another v Mutahi WAkabiru CA Nol. 80 of 1985 it was held that:
“any other sufficient reason” need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act. The court further went on the hold that the other grounds set out in the rule did not in themselves form a genus or class of things with which the third general head could be said to be analogous.
In Chanzu Investments Ltd v Commissioner of Lands (1993) KECA 36 (KLR) the Court of Appeal held;
“The current position would then, appear to be that the court has unfettered discretion to review its own decrees or orders for any sufficient reason.”
See also Swai v Kenya Breweries Ltd (2014) KECA 883 (KLR).
The applicant’s averment and submission is that the participated in a lawful, transparent and competitive recruitment process for the position of the respondent’s Director, Corporate Services, was nominated by the Respondent’s Board of directors and appointed vide letter dated 10 th April 2026, and the court orders were issued nineteen (19) days thereafter and the appointment had taken effect.
From the averments by both parties, it is surmisable that Mr. Humphrcy Nakitari was not acting in the position of Director Corporate Services on 10 th April 2026 and had no reason to complain about until the court made the orders on 29 th April 2026. Indeed, this is fortified by the fact that the application for contempt of court was dated 13 th May 2026.
It is noteworthy that when Mr. Humphrey Nakitari swore the Supporting Affidavit to the Main Motion, the appointment of the Applicant, herein had not crystalized and the affidavit was silent on the date of appointment or assumption of office.
Puzzlingly, in his Further Affidavit sworn on 21 st April 2026, Mr. Humphrey Nakitari did not indicate that the applicant had been appointed and assumed office. These were facts within his knowledge as an employee of the Respondent and the applicant’s colleague.
However, most intriguing is the fact that Mr. Humphrey Nakitari did not allege that the applicant had already taken up the position he was acting in and there was no competition for the position. Similarly, Mr. Humprey Nakitari’s Supporting Affidavit sworn on an undisclosed date in support of the motion dated 27 th April 2026 did not disclose the position the Applicant was holding yet the Respondent’s Board of directors intended to appoint him as the acting Chief Executive Officer, a development Mr. Humphrey Nakitari was opposed to.
Finally, in his Supporting Affidavit sworn on 13 th May 2026 in support of the application for contempt of court of even date, Mr. Humprey Nakitari did not indicate or allege that the Applicant herein was appointed and assumed office after 29 th April 2026. To the contrary, he deponed the Interested party continued to occupy the office of the Director Corporate Services with full knowledge and approval of the Respondent, thereby admitting that appointment and assumption of office by the Interested Party had already taken place by the time the court issued the orders on 29 th April 2026.
The foregoing analysis leave little doubt that court issued the temporary orders ex post facto. Put in the alternative, the horse had bolted, rendering the court orders ineffectual.
Flowing from the foregoing, it is discernible that there is no justification to sustain the orders dated 29 th April, 2026.
Consequently, the order is hereby set aside.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31 ST DAY OF APRIL, 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 15 th March 2020 and subsequent directions of 21 st 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
Page 2 of 2