REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURTAT NAIROBI
ELRC JUDICIAL REVIEW NO E036 OF 2026
HUMPHREY NAKITARI …………………………………….. PETITIONER
VERSUS
BOARD OF DIRECTORS NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND …………………………………….……….. RESPONDENT
RULING
Before the court for determination is the Petitioner/Applicant’s Notice of Motion dated 7th April, 2026 filed under Certificate of Urgency seeking Orders that;-
1. Spent.
2. The Honourable Court be pleased to review its orders of 2nd April 2026 and allow prayer No.2 and 3 in the interim to wit:
a. Pending the hearing and determination of this suit the court be pleased to stay the appointment and/or recommendation of Ali Isaack Ahmed as the Director Corporate Services of the Respondent.
b. Mr. Humphrey Nakitari to continue in his role as Acting Director Corporate Service of the Respondent pending the hearing and determination of this suit.
3. The court be pleased to adopt the Notice of Motion dated 2nd April, 2026 together with the Supporting Affidavit and deem the Judicial Review proceedings against the Respondent duly filed and direct service.
4. Costs of this application be in the cause.
The motion is based on the grounds set out on its face and the Supporting Affidavit of the Petitioner Applicant sworn on 7th April, 2026.
The applicant’s case is that the Respondent advertised the position of Director Corporate Services and out of 93 applicants, 14 were shortlisted and he was among the top three applicants who attained the minimum score of 75% and on 30th March 2026, the Respondent recommended the Interested Party, who was in position number 2, for the position of Director Corporate Services.
According to the Petitioner/Applicant, the Respondent acted in breach of paragraph B (4) of Circular OP/CAB.9/1A dated 11th March 2020 in terms of constitution of the Ad hoc committee, membership of the chair of the Board of Directors, and the committee acted as a full board in recommending the appointment of the Interested Party.
Respondent’s case
In opposition to the application, the Respondent filed a Replying Affidavit sworn by Rebecca Ghati Moraa on 15th April, 2026.
The affiant deponed that recruitment of the Director-Corporate Affairs was conducted lawfully, transparently and in compliance with the law including the Public Service Commission guidelines and applicable circulars in that the position was advertised, applications received from 93 candidates, 14 shortlisted, interviews conducted and 3 applicants met the threshold of 75% and the Interested Party was ranked number 2 and was recommended for appointment to ensure inclusivity, affirmative action and presentation.
That the applicant held the position in acting capacity for renewable six months appointments pending substantive filing of the position and no legitimate expectation arose out of the appointment.
That the Ad hoc Committee was duly mandated by the full board to conduct interviews and its recommendations were subsequently ratified by the full board and would be confirmed in the next meeting and ratification by the full board cures all procedural defects and the dissent by the member of the committee did not invalidate the majority decision and it was duly recorded and the Petitioner submitted himself to the committee for interview and did not object to the composition of the committee and the complaint was opportunistic.
That the allegations of bias or irregularity were unfounded and the suit was misconceived and by the time the Petitioner moved to Court the action sought to be restrained had been conducted and the board acted in good faith and the application was spent.
Applicant’s submissions
As to whether the Orders sought are merited, counsel submitted that they were in that the applicant had been acting in the position of Director Corporate Services and the Interested Party would assume public office irregularly and the Respondent would suffer no prejudice.
Reliance was placed on the sentiments of the court in Paul Gitonga Wanjau v Gathumbi Tea Factory & 2 others (2016) eKLR, on the courts role in determining which party suffers greater harm than the other.
Counsel submitted that the applicant had raised triable issues in the main motion with probability of success. That the issue was arguable.
Further reliance was placed on Paul Tigonga Wanjau v Gathuthi Tea Factory Co. Ltd (Supra) on the essence of a prima facie as were the sentiments of the Court of Appeal in Olympic Escort International Co. Ltd & 2 others v Parminder Singh Sandu & another (2009) eKLR to urge that the grounds relied upon the Respondent to appoint the Interested Party as opposed to the candidate who emerged 1st were unjustified.
Respondent’s Submissions
Mr. Kioko for the Respondent submitted the Applicant had not met the threshold for the grant of conservatory Orders as enunciate in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (2014) eKLR.
Reliance was also placed on Muslim for Human Rights & 2 others v Attorney General & 2 others (2011) eKLR to urge that the orders being sought were final in nature and ought not issue at the interim and if granted would render the substantive motion nugatory.
It is not in dispute that at its 92nd meeting held on 13th September, 2024 the Respondent’s Board of Directors appointed the applicant to perform the duties of Director Corporate Services effective 1st July, 2024 for a period of six (6) months or until the post was substantially filled, whichever was earlier at an allowance of Kshs.18,110.00 per month and at its 93rd meeting held on 3rd February, 2025, the Board of Directors appointed the Applicant to perform the duties of the office of Director Corporate Services effective 1st January, 2025 on similar terms as the earlier appointment and additionally acted as the Chief Executive Officer of the Respondent effective 4th April, 2025 to 11th May, 2025.
Similarly, it is not in contest that at its 97th meeting held on 21st November, 2015, the Respondent’s Board of Directors approved the recruitment of a Director Corporate Affairs following an Advertisement which attracted 93 applicants and 14 had been short-listed and were interviewed subsequent to the meeting by a committee under the chairmanship of Mr. Bendera Wilson. Other members of the panel were Rebecca Ghati, Halima Daud and Samsun Ogola, the Chairperson of the Respondent’s Board of Directors. Of the 12 applicants who were interviewed, the Applicant was ranked at number 3 after Judith Aheno Okech who scored 84.75% and Ali Issack Ahmed who scored 84%. The Applicant attained a score of 80% and by a Report dated 30th March, 2026, the panel or committee recommended the appointment of Ali Issack Ahmed as the Director Corporate Services on the ground of affirmative action based on age and ethnicity.
From the Interview Report dated March, 2026, it is clear that the Respondent’s chairperson of the Board of Directors participated in the interview, and signed the Report on 3rd March, 2026. The applicant’s complaint is that the Interviewing Panel or committee was improperly constituted in terms of number of participants, composition and operated within the framework of full board structure. That the Board of Directors of the Respondent had disguised itself as a committee or panel to recommend the Interested Party as the Director Corporate Services.
From the documents provided by the Petitioner in support of the instant application and considering the Respondents response to the application, the court is satisfied that the applicant has established a case to justify the review of the order issued on 2nd April, 2026 and in its place direct that pending the hearing and determination of this suit there shall be a temporary stay of the recommendation and/or appointment of the Interested Party as the Respondent’s Director-Corporate Services.
There shall be no Orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29th 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 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 -JR E036 OF 20262 OF 7 |