REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION E113 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
IBRAHIM KEROW ABDULLE .................................. 1 ST PETITIONER
МОНАМED ISSACK HUSSEIN …………………………. 2 ND PETITIONER
ABDI IBRAHIM GEDI ………………………………….….. 3 RD PETITIONER
МОНАМED MOHMED ADOW.................................. 4 TH PETITIONER
ABDIKER ADAN ALI .............................................. 5 TH PETITIONER
VERSUS
MINISTRY OF INTERIOR AND NATIONAL
ADMINISTRATION ……………………………………..... 1 ST RESPONDENT
THE DEPUTY COUNTY COMMISSIONER,
MANDERA CENTRAL SUB-COUNTY ……………….. 2 ND RESPONDENT
THE HON. ATTORNEY GENERAL ....................... 3 RD RESPONDENT
AND
ISSIDIN ABDI МОНАМED …………….…….… 1 ST INTERESTED PARTY
ADAN MOHAMED ABDI ............................. 2 ND INTERESTED PARTY
ABDIMAHDI ADAW ABDI …………………...... 3 RD INTERESTED PARTY
URAF MAALIM IBRAHIM .......................... 4 TH INTERESTED PARTY
RULING
1. This instant application dated 10 th April 2026, premised on Articles 20, 22, 23, 159(2), 165, and 258 of the Constitution of Kenya 2010 and Rules 3, 4, 8, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 seeks orders that:
a. Spent
b. THAT the Honorable Court be pleased to issue temporary injunction restraining the Respondent either acting on his own and or through his agents, employees, servants, and/or any other person acting and/or purporting to act under his instructions and or orders from appointing any of the Interested Parties and/or any other persons to the position of Chief Grade II Wargadud Town Location and/or taking any further action in respect to filing the position of the Chief Grade II Wargadud Town Location pending the hearing and determination of the Application filed herewith.
c. THAT the Honorable Court be pleased to issue temporary injunction restraining the Respondent either acting on his own and or through his agents, employees, servants, and/or any other person acting and/or purporting to act under his instructions and or orders from appointing any of the Interested Parties and/or any other persons to the position of Chief Grade II Wargadud Town Location and/or taking any further action in respect to filing the position of the Chief Grade II Wargadud Location pending the hearing and determination of the Petition filed herewith.
d. THAT the cost of this Application be granted.
2. The Applicant is accompanied by the Affidavit sworn by Моhamed Issak Hussein on 10 th April 2026 and based on the grounds that: subsequent to the advertisement of 28 th January 2026 referenced ST/CF/VOL1(203), of a vacancy in the said position, the 2 nd Respondent on 9 th April, 2026 interviewed the Interested Parties herein for the position in an unclear process devoid of transparency, public participation, marred with irregularities, nepotism, favoritism and in contravention of the Constitution of Kenya, 2010 particularly Article 10, 41, 47 and 232; that any appointment arising therefrom would be against the salient and sacred principles of equity, fairness, equality and equal treatment of all persons before the law; that the 3 rd Interested Party failed to meet the qualification criteria for appointment to the position of Chief Grade II, CSG 12 (JG-H), contained in the advertisement dated 28 th January, 2026; despite the Petitioners' protestation against the recruitment vide the letter dated 6 th April, 2026, the 2 nd Respondent nonetheless proceeded to conduct the interviews without proffering reasons as to why only members of the same extended family and or relatives of the retired chief of the said location were shortlisted even though there were other qualified candidates who applied for the position; the Petitioners are apprehensive that if an Order is not issued, the 2 nd Respondent is likely to proceed with the illegal, unlawful and unprocedural recruitment, subjecting the Petitioners as well as other citizens of Wargadud Town Location to irreparable harm that is not atonable by award of damages; should the appointment be allowed to proceed on the basis of the impugned interviews the residents of Wargadud Town Location will suffer substantial loss and damage on the account of poor leadership devoid of the required qualification and national values set out in Chapter 6 of the Constitution of Kenya, 2010; it is in the interest of justice that the Orders sought herein be granted so as to preserve the substratum of the Petition and the sanctity of the recruitment process.
3. The 4 th Interested Party in his sworn affidavit deposed that he associated himself with the averments by the Petitioner’s in both his Petition and Application. He stated that the 1 st and 2 nd Respondents in their advertisement dated 28 th November 2025, Ref: ST/CF/VOL. 1(199), invited qualified applicants to fill five positions of Chief Grade II CSG 12 (JG-H) for Elwak South, Elwak Town, Qalanqalesa, Wargadud town, and Quarahmadhow, all within Mandera Central sub-county. That he put in his application, reasonably expecting to be considered, seeing that he qualified. He stated that as he awaited shortlisting, on 28 th January 2026, the 2 nd Respondent re-advertised the position, without reasons why the earlier applications were not considered.
4. He stated that he reapplied for the position and was shortlisted and attended interview on 9 th April 2026. He stated that although the results were yet to be declared, he learnt from credible sources within the 2 nd Respondent’s office that the names of the 1 st , 2 nd and 3 rd Interested Parties had been forwarded to the Regional Commissioner, North Eastern, as the successful candidates, and any among them would likely be appointed to the position. He added that he knew that the 2 nd Interested Party, was not a resident of Wargadud Town location and his candidacy for the position was merely to sanitize the process, so that the 3 rd Interested Party, the retired chief’s biological son, would be appointed. He further questioned the retired chief’s authority to write a letter confirming the 2 nd Interested Party’s residence, yet he had no authority to conduct any official business. He added that any appointment of the 2 nd Interested Party would be a contravention of the qualification criteria that required one to be a resident.
5. He deposed that he knew that the 3 rd Interested Party, the retired chief’s biological son was shortlisted despite not meeting the criterion of age. He contended that there is a high likelihood that the retired chief intends on retaining his son as chief, thereby converting the position into a family affair. On advice of counsel, he stated that every person is entitled to fair and equal treatment before the law. He added that constitutional values of transparency, equity and equality bound all, and thus, the recruitment process was a violation of the constitution and the Employment Act. He added that the community shall be denied of quality leadership if the recruitment is allowed to sail through. The Court was urged to stop the same.
6. The 2 nd Respondent, Mr. Tobius Otunga, the Deputy County Commissioner, in his affidavit acknowledged that the Mandera Central Sub-County advertised for the position of Chief II Wargadud Town Location on 26 th November 2025. He deposed that the advertisement only attracted 2 applications that met the scrutiny as per the Administrative Officers’ Scheme of Service 2015. Consequently, the position was re-advertised vide letter dated 28 th January 2026, and 10 individuals applied but only four met the requirements. He added that the interviews were conducted on 9 th April 2026. He stated that the recruitment process was conducted in a transparent, legal and fair manner; having procedurally started after receipt of authority to advertise the vacant position from the County Commissioner vide a letter dated 11 th November 2025. He stated that the authorization letter emphasized strict adherence to the provisions of the Administrative Officer's Scheme of Service 2015 while conducting the recruitment exercise.
7. He outlined the requirements for one to be appointed to this grade in the Administrative Officer's Scheme of Service 2015 to be: possess a mean grade of C (Plain) in Kenya Certificate of Secondary Education (KCSE) or its equivalent from a recognized examining body; Diploma in Public Administration, Management, Social Work, Community Development, Education, Governance, or Conflict Management or its equivalent qualification from a recognized institution; be not less than thirty-five (35) years of age; be a resident of the particular location; a Certificate of Good Conduct; have good communication skills; and have certificate in computer application skills course from a recognized institution.
8. He deposed that both advertisements for the position of Chief II, Wargadud, did not limit or discriminate against any Kenyan or the residents of Wargadud Location, who held the requisite minimum qualifications as stipulated in the Scheme of Service 2015. He denied the allegations that the vacancy only targeted members of the retired chief's family, noting that the same are unfounded. He added that he appointed a five-member committee, comprising of the Assistant County Commissioner (the Chair), the Human Resource Manager (secretary), and three other head of departments to constitute the shortlisting panel. He stated that the duty of the committee was to scrutinize and to document all received applications from the interested applicants against the requirements of the Administrative Officer's Scheme of Service and constitute a shortlist.
9. He added that the panel sat on 27 th February 2026 and prepared a report that he procedurally escalated to the County Human Resource Advisory Committee for review on the 6 th March 2026 to ensure fairness, and fidelity to the Scheme of service. He stated that he on the 31 st March, 2026, received authorization to conduct interviews from the County Commissioner, Mandera. He deposed that his office received a group of people from Wargadud on 7 th April 2026, whose complaint was that there was a section of residents of Wargadud Location who were agitated as to why the current Assistant Chief, Wargadud Town Sub Location who had applied for the position of Chief II, Wargadud was not among the shortlisted candidates. He stated that the Assistant County Commissioner explained the recruitment process to the group and the minimum requirements to fill the said vacancy.
10. He added that they were further informed that the Assistant Chief was not considered for the vacancy as he had a Grade of D+ (Plus), was 31 years of age and had no diploma in the specified disciplines. He stated that following the explanation the group noted that they had been misled on facts about the recruitment process. He stated that the Petitioners wrote a letter dated 6 th April 2026 to the Regional Commissioner, North Eastern Region copied to him and received by his office on 9 th April 2026. He stated the letter raised issues on why the Assistant Chief was not shortlisted and allegations that the Interested Parties were from the same extended family of the retired chief.
11. He stated that it was impossible to tell if the candidates were related to the retired chief during the recruitment process, as the panel only relied on the identification card and academic qualifications to ensure the criteria for the position of Chief II, Wargadud were met. He insisted that the claim of nepotism did not hold water. He stated that he and the recruitment committee recommended the best three (3) candidates selected from the interviews. He added that the Regional Commissioner will forward the names to the Permanent Secretary who will advise on the suitable candidate for the position among the (3) or recommend that the position be re-advertised. He reiterated that a candidate is yet to be selected to fill the vacancy, as the Permanent Secretary can make the appointment or recommend that the recruitment process start afresh. He termed the application as an abuse of the court process and premature at this stage. He urged that the recruitment process was done legally and followed all legal procedures, thus this application is unmerited and ought to be dismissed with costs to the Respondents.
12. The 3 rd Interested Party responded to the Application vide his replying affidavit sworn on 22 nd April 2026. He deposed that Application and the Petition were misconceived, bad in law, incompetent, devoid of merit and an abuse of court process. In response to paragraph 3 of the Applicant’s affidavit, he stated that he applied for the position upon ascertaining that he had met the requirements, where the he was shortlisted and interviewed. He stated that the interview process he was subjected to was transparent, lawful, and competitive, and in accordance with applicable regulations and procedure. He confirmed that the suitable candidates were shortlisted and interviewed in the 2 nd Respondent’s offices in a fair and merit-based transparent manner. He acknowledged that he was the former chief’s son adding that he believed he was shortlisted on basis of qualification, eligibility and merit. He contended that all the Applicants were accorded an equal opportunity to compete fairly and thus, his shortlisting did not by itself constitute bias, favouritism or irregularity in the process.
13. He added that he helds the requisite academic qualifications, and was above the age of 35, having been born in 1990; attained a grade of C minus in 2019; undertook a diploma in community development & social work; undertook a computer packages course; registered afresh for KCSE in 2024 and attained a C Plain grade; and possesses the requirements on integrity, competence, suitability and eligibility. He added that his academic certificates and testimonials were genuine, valid and verifiable with the relevant institutions and thus the allegations were false. He deposed that no evidence had been tendered to demonstrate fraud, forgery, illegality, misrepresentation or non-compliance on his part. He added that the suit was intended to unjustly deny him the fruits of a lawful and competitive recruitment process.
14. He further deponed that the Applicant had failed to demonstrate any violation of the constitution, statute or rules of natural justice, and thus the orders sought were unwarranted. He stated that the Petition and the Application did not disclose any cause of action and ought to be dismissed with costs.
15. Relatedly, the Petitioners filed a second application under Article 35(1a) of the Constitution, section 4(1a) of the Access to Information Act and Rule 44 of the Employment and Labour Relations Court Procedure Rules 2024, seeking orders that:
a. Spent
b. That the Honourable Court be pleased to issue an order compelling the Registrar of Persons, who is the officer in charge of identification, registration and issuance of national identification card and as the custodian of the National Population Register to issue to the Petitioner/Applicant and or bring into this Honourable Court information relating to the 3 rd Interested Party’s acquisition of the National Identity Card issued on 28 th January 2026.
c. That the Honourable Court be pleased to grant such other and or further orders as shall be necessary to ensure the ends of justice are met.
d. That the costs of the Application be granted to the Petitioners/Applicants.
16. The Application was accompanied by the sworn affidavit of Mohamed Issack Hussein and based on the grounds that: the 3 rd Interested Party, with the assistance of persons within the office of the Registrar in Elwak, changed and manipulated his date of birth on his national identity card and thereafter obtained a new one; that it is public knowledge that the 3 rd Respondent is yet to attain 35 years of age and therefore there is reason to believe that the change was part of a wider scheme initiated by the 3 rd Interested Party’s father; that the right to access information is guaranteed by the Constitution; whereas the right to privacy is also constitutionally protected, this Court has the power to order for any private information where there was just cause; and that the instant petition challenges the 3 rd Interested Party’s qualification on basis of age and thus the information sought is relevant.
17. The 2 nd Respondent in his replying affidavit deposed that the Application was premature, devoid of merit, misconceived, and an abuse of the court process. He relied on Sections 107 and 109 of the Evidence Act (Cap 80) to assert that the Petitioners, having filed the Application making various assertions therein, bore the legal burden of proving the facts; but unfortunately, have placed no evidence before this Honorable Court to discharge that burden. He added that the Petitioners had failed to produce any documentary evidence whatsoever to support their allegations that the 3 rd Interested Party's date of birth on his National Identification Card was altered or manipulated. He contended there was no supporting evidence for the assertion that a new National Identification Card was fraudulently obtained and was insufficient in law to sustain the Orders sought herein and did not meet the threshold required to compel the Registrar of Persons to produce records before this Honourable Court.
18. He stated that the National Identification Card, bearing the date 13.03.1990 was the one he presented during the Recruitment process and they had no reason to suspect nor reject it. He insisted that the committee that was conducting the recruitment was only obligated to check the age of the interested Applicants and location that they hail from to ascertain that they met the criteria for the position of Chief Wargadud II. He reiterated that the Petitioners have failed to produce any birth certificate, hospital birth record, previous Identification card or any other official document to establish the 3 rd Interested Party's date of birth as distinct from what appears on his issued National Identification Card.
19. He further deponed that the Petitioner’s claim was unfounded as they had not identified any specific individual who could testify from direct, personal knowledge as to the 3 rd Interested Party's actual date of birth. He contended that the legally recognized manner of establishing a person's age in Kenya was by production of a Birth Certificate issued by the Registrar of Births and Deaths, or such other acceptable primary evidence as recognized under the law, and no such evidence had been placed before this Honourable Court by the Petitioners. He termed the Petitioner's Application as premature and a waste of the Court's time as the Petitioners did not first exhaust the readily available administrative remedies in ascertaining the validity of the Identification Card in question. On advice of counsel, he deposed that the Petitioners ought to have formally written to the National Registration Bureau (NRB), which is the statutory body charged with the oversight of National identification records in Kenya, requesting verification or confirmation of the 3 rd Interested Party's registration details and the history of his identification card.
20. He added that the Petitioners ought to have also formally written to the Registrar of Persons, through the Office of the Registrar of Persons in Wajir County, requesting official verification of the National Identification Card issued to the 3 rd Interested Party; and seek clarification as to whether any replacement of his identification details was lawfully effected, and thereafter awaited a formal response. As such, he urged the court to dismiss this Application with costs to the Respondents.
21. The 3 rd Interested Party responded vide has sworn affidavit dated 14 th May 2026. He denied the allegations He outlined the procedure of acquisition of an identification card. He stated that he was born in 1990 and upon attaining the age of majority, he presented himself at the office of the Registrar of Persons at Elwak where his biometrics were captured. That upon verification of his data, he was issued with an identity card which reflected his birth date as 13 th March 1990. He termed the allegations as speculative, false, and without any legal or factual basis. The Petitioner was accused of not placing any evidence of forgery, fraud, falsification, or illegality before the Court to warrant the issuance of the intrusive orders.
22. On advice of counsel, he further contended that discovery and production of documents should not be used as a fishing expedition to invade his privacy without any credible evidence of wrongdoing on his part. He added that the orders sought were prejudicial and would unjustly violate his constitutional right to privacy. He urged that the application be dismissed with costs for being an abuse of court process.
23. In rejoinder, the Petitioners in their further affidavit sworn by Mohamed Issack Hussein stated that although the right to privacy was guaranteed constitutionally, the protection was not absolute where it was satisfied that the information was necessary and relevant for the purpose sought. He denied the argument that they ought to have written to the National Registration Bureau to verify the 3 rd Interested Party’s particulars before moving the court, on ground that the same can only be availed by court order. He stated that the birth certificate is a mandatory requirement for all first-time applications. He stated that the 3 rd Interested Party’s identity card showed that the same was issued on 28 th January 2026, whereas his birth certificate was issued on 9 th May 2026; raising the issue on how he acquired an ID without a birth certificate.
24. He further queried how he registered for his KCSE in 2019 if at all he did not have a birth certificate. He reiterated that the same was an indication that it was obtained through forgery, falsification and fraud, hence the need for the order to compel the registrar to shed light into the matter. He added that the information was not meant to harass the 3 rd Interested Party or to invade his privacy but to ensure that the Court had sufficient information to reach a just and fair determination. He noted that there would be no prejudice caused to the 3 rd Interested Party if the order sought was granted.
Submissions
25. On the first Application, the Applicants submitted the issue on whether the Court should grant a temporary injunction and or conservatory order pending the hearing and determination of the Petition. Reliance was placed on Article 23(3) of the Constitution and Rule 23(1) of the Constitution of Kenya (Protection of Right and Fundamental Freedoms) Practice and Procedure Rules, 2013 to argue that this Court had power to grant the order. The Applicant outlined the applicable test for the issuance of temporary injunction to include the need to demonstrate a prima facie case with a likelihood of success, and suffer prejudice if the same wasnot granted. It was submitted that the Court will thereafter determine whether the denial or grant of the order will enhance constitutional values. It was added that the Applicant was required to further demonstrate that should the order be denied, the petition or its substratum would be rendered nugatory.
26. On prima facie case, reliance was placed on Article 10 (2) of the Constitution on national principles and Article 232 (1g) on fair competition and merit as the basis for appointment and promotion. It was contended that there was deliberate exclusion of other qualified candidates who had applied for the position contrary to equity, inclusiveness and equality.
Reliance was placed on the decision in Platinum Distillers Ltd vs Kenya Revenue Authority (Petition 83 of 2019) [209] KEHC 9419 (KLR).
27. On whether or not to grant the orders, reliance was placed on Articles 19(1) and 47 of the Constitution, to submit that the disqualification of other applicants on flimsy grounds violated their rights to lawful and procedurally fair administrative action. On whether the petition will be rendered nugatory, it was submitted that if the order was not granted, appointment would proceed thereby rendering the petition nugatory. Reliance was placed on the decision in Hassan & another v Cabinet Secretary, Ministry of Interior & Coordination & another (Petition E005 of 2025) [2025] KEHC 5898 (KLR). On public interest, it was submitted that any person appointed to the office draws a salary from public coffers and any amounts paid to the appointee shall not be recoverable in the event the Petition is successful. It was added that due to the centrality of the Chief’s Office, the appointee ought to be appointed through a process that complies with constitutional dictates to foster public trust.
28. The 2 nd Respondent whether the Applicants were entitled to the temporary injunction sought; whether the recruitment process for the position of Chief II, Wargadud Location was conducted in a transparent, legal and fair manner; whether the Applicants had provided any primary or credible evidence to substantiate allegations of nepotism and irregular shortlisting; whether the Application and Petition were premature and constitute an abuse of the court process.
29. On the first issue, it was submitted that the grant of temporary injunction was an exercise of judicial discretion paying regard to the three pillars established in Giella v Cassman Brown & Co. Ltd (1973). It was reiterated that the recruitment process followed the Revised Scheme of Service (2015) strictly and the Applicants had only relied on vague allegations of nepotism without proof. It was submitted that there is no prima facie case to warrant an injunction.
30. It was submitted that an injunction should not be granted unless the Applicant might otherwise suffer irreparable injury, that cannot be adequately compensated by an award of damages. It was submitted that the Applicants had not shown any unique or irreparable harm, since the loss of a job opportunity was a matter that can be quantified and compensated through damages. It was argued that the public interest outweighed the private interest of the Applicants. It was further submitted that due to the vitality of this position for local security and government administration, halting the recruitment would cause a vacuum in public service and harm to the public that cannot be compensated by damages. On the balance of convenience, it was submitted that if the court was in doubt, it had to decide the case on the balance of convenience. It was further argued that the balance of convenience tilted heavily in favor of the Respondents since the recruitment process was almost complete and has involved significant public resources. The Court was urged to deny the prayer for a temporary injunction.
31. On the second issue, it was submitted that the recruitment exercise was conducted in strict adherence to the Administrative Officer Scheme of Service 2015; including re-advertising the position on 28 th January 2026, when the initial round failed to attract a sufficient pool of qualified candidates. It was reiterated that the recruitment was extended to all interested persons in Wargadud Location provided they met the objective academic and age thresholds. It was urged that there existed no reason to grant injunctive orders to restrain the Respondents from appointing the qualified interested party.
32. On the third issue, it was reiterated that the exclusion of certain candidates, specifically the current Assistant Chief, was not an act of bias, but due to his failure to meet the minimum requirements. Reliance was placed on the decision Barasa v Public Service Board County Government of Trans-Nzioia & 4 others (2023) KEELRC 3184 (KLR), where the court dismissed claims of nepotism and tribalism in a recruitment exercise. It was submitted that following the reasoning in the above case, general assertions of unfairness were insufficient in a constitutional petition. It was argued that it was not possible for the panel during the screening or interview process to ascertain familial relations to the retired chief, as the assessment was based on objective, document-backed criteria. It was urged that in the absence of any documented proof of favoritism or a breach of the scheme of service, these allegation remain unfounded and did not meet the legal threshold required for judicial intervention.
33. On the forth issue, it was submitted that the instant Application was fundamentally unripe and prematurely before this Court. Reliance was placed on the decision in Safaricom Plc v Director of Criminal Investigations & 2 others; Musebe & 18 others (Interested Parties) [2026] KEHC 2214 (KLR ), that the doctrine of ripeness was a fact of the larger principle of non-justiciability designed to shield the judiciary from hypothetical or premature disputes. It was contended that for a matter to reach the threshold of ripeness, there must be a crystallization of facts grounded in a final administrative action rather than speculative fear. It was added that in the present matter, the Respondents had not taken a final administrative action that would warrant judicial intervention. It was submitted that the Applicant had not been subjected to any prejudice as the Permanent Secretary retained the discretion to either appoint a candidate from the recommended list or order a fresh recruitment exercise.
34. It was added that the Court’s interference at this juncture with no good reason and to stop qualified Persons from an opportunity to take the position
[...truncated]
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION E113 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
IBRAHIM KEROW ABDULLE .................................. 1 ST PETITIONER
МОНАМED ISSACK HUSSEIN …………………………. 2 ND PETITIONER
ABDI IBRAHIM GEDI ………………………………….….. 3 RD PETITIONER
МОНАМED MOHMED ADOW.................................. 4 TH PETITIONER
ABDIKER ADAN ALI .............................................. 5 TH PETITIONER
VERSUS
MINISTRY OF INTERIOR AND NATIONAL
ADMINISTRATION ……………………………………..... 1 ST RESPONDENT
THE DEPUTY COUNTY COMMISSIONER,
MANDERA CENTRAL SUB-COUNTY ……………….. 2 ND RESPONDENT
THE HON. ATTORNEY GENERAL ....................... 3 RD RESPONDENT
AND
ISSIDIN ABDI МОНАМED …………….…….… 1 ST INTERESTED PARTY
ADAN MOHAMED ABDI ............................. 2 ND INTERESTED PARTY
ABDIMAHDI ADAW ABDI …………………...... 3 RD INTERESTED PARTY
URAF MAALIM IBRAHIM .......................... 4 TH INTERESTED PARTY
RULING
1. This instant application dated 10 th April 2026, premised on Articles 20, 22, 23, 159(2), 165, and 258 of the Constitution of Kenya 2010 and Rules 3, 4, 8, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 seeks orders that:
a. Spent
b. THAT the Honorable Court be pleased to issue temporary injunction restraining the Respondent either acting on his own and or through his agents, employees, servants, and/or any other person acting and/or purporting to act under his instructions and or orders from appointing any of the Interested Parties and/or any other persons to the position of Chief Grade II Wargadud Town Location and/or taking any further action in respect to filing the position of the Chief Grade II Wargadud Town Location pending the hearing and determination of the Application filed herewith.
c. THAT the Honorable Court be pleased to issue temporary injunction restraining the Respondent either acting on his own and or through his agents, employees, servants, and/or any other person acting and/or purporting to act under his instructions and or orders from appointing any of the Interested Parties and/or any other persons to the position of Chief Grade II Wargadud Town Location and/or taking any further action in respect to filing the position of the Chief Grade II Wargadud Location pending the hearing and determination of the Petition filed herewith.
d. THAT the cost of this Application be granted.
2. The Applicant is accompanied by the Affidavit sworn by Моhamed Issak Hussein on 10 th April 2026 and based on the grounds that: subsequent to the advertisement of 28 th January 2026 referenced ST/CF/VOL1(203), of a vacancy in the said position, the 2 nd Respondent on 9 th April, 2026 interviewed the Interested Parties herein for the position in an unclear process devoid of transparency, public participation, marred with irregularities, nepotism, favoritism and in contravention of the Constitution of Kenya, 2010 particularly Article 10, 41, 47 and 232; that any appointment arising therefrom would be against the salient and sacred principles of equity, fairness, equality and equal treatment of all persons before the law; that the 3 rd Interested Party failed to meet the qualification criteria for appointment to the position of Chief Grade II, CSG 12 (JG-H), contained in the advertisement dated 28 th January, 2026; despite the Petitioners' protestation against the recruitment vide the letter dated 6 th April, 2026, the 2 nd Respondent nonetheless proceeded to conduct the interviews without proffering reasons as to why only members of the same extended family and or relatives of the retired chief of the said location were shortlisted even though there were other qualified candidates who applied for the position; the Petitioners are apprehensive that if an Order is not issued, the 2 nd Respondent is likely to proceed with the illegal, unlawful and unprocedural recruitment, subjecting the Petitioners as well as other citizens of Wargadud Town Location to irreparable harm that is not atonable by award of damages; should the appointment be allowed to proceed on the basis of the impugned interviews the residents of Wargadud Town Location will suffer substantial loss and damage on the account of poor leadership devoid of the required qualification and national values set out in Chapter 6 of the Constitution of Kenya, 2010; it is in the interest of justice that the Orders sought herein be granted so as to preserve the substratum of the Petition and the sanctity of the recruitment process.
3. The 4 th Interested Party in his sworn affidavit deposed that he associated himself with the averments by the Petitioner’s in both his Petition and Application. He stated that the 1 st and 2 nd Respondents in their advertisement dated 28 th November 2025, Ref: ST/CF/VOL. 1(199), invited qualified applicants to fill five positions of Chief Grade II CSG 12 (JG-H) for Elwak South, Elwak Town, Qalanqalesa, Wargadud town, and Quarahmadhow, all within Mandera Central sub-county. That he put in his application, reasonably expecting to be considered, seeing that he qualified. He stated that as he awaited shortlisting, on 28 th January 2026, the 2 nd Respondent re-advertised the position, without reasons why the earlier applications were not considered.
4. He stated that he reapplied for the position and was shortlisted and attended interview on 9 th April 2026. He stated that although the results were yet to be declared, he learnt from credible sources within the 2 nd Respondent’s office that the names of the 1 st , 2 nd and 3 rd Interested Parties had been forwarded to the Regional Commissioner, North Eastern, as the successful candidates, and any among them would likely be appointed to the position. He added that he knew that the 2 nd Interested Party, was not a resident of Wargadud Town location and his candidacy for the position was merely to sanitize the process, so that the 3 rd Interested Party, the retired chief’s biological son, would be appointed. He further questioned the retired chief’s authority to write a letter confirming the 2 nd Interested Party’s residence, yet he had no authority to conduct any official business. He added that any appointment of the 2 nd Interested Party would be a contravention of the qualification criteria that required one to be a resident.
5. He deposed that he knew that the 3 rd Interested Party, the retired chief’s biological son was shortlisted despite not meeting the criterion of age. He contended that there is a high likelihood that the retired chief intends on retaining his son as chief, thereby converting the position into a family affair. On advice of counsel, he stated that every person is entitled to fair and equal treatment before the law. He added that constitutional values of transparency, equity and equality bound all, and thus, the recruitment process was a violation of the constitution and the Employment Act. He added that the community shall be denied of quality leadership if the recruitment is allowed to sail through. The Court was urged to stop the same.
6. The 2 nd Respondent, Mr. Tobius Otunga, the Deputy County Commissioner, in his affidavit acknowledged that the Mandera Central Sub-County advertised for the position of Chief II Wargadud Town Location on 26 th November 2025. He deposed that the advertisement only attracted 2 applications that met the scrutiny as per the Administrative Officers’ Scheme of Service 2015. Consequently, the position was re-advertised vide letter dated 28 th January 2026, and 10 individuals applied but only four met the requirements. He added that the interviews were conducted on 9 th April 2026. He stated that the recruitment process was conducted in a transparent, legal and fair manner; having procedurally started after receipt of authority to advertise the vacant position from the County Commissioner vide a letter dated 11 th November 2025. He stated that the authorization letter emphasized strict adherence to the provisions of the Administrative Officer's Scheme of Service 2015 while conducting the recruitment exercise.
7. He outlined the requirements for one to be appointed to this grade in the Administrative Officer's Scheme of Service 2015 to be: possess a mean grade of C (Plain) in Kenya Certificate of Secondary Education (KCSE) or its equivalent from a recognized examining body; Diploma in Public Administration, Management, Social Work, Community Development, Education, Governance, or Conflict Management or its equivalent qualification from a recognized institution; be not less than thirty-five (35) years of age; be a resident of the particular location; a Certificate of Good Conduct; have good communication skills; and have certificate in computer application skills course from a recognized institution.
8. He deposed that both advertisements for the position of Chief II, Wargadud, did not limit or discriminate against any Kenyan or the residents of Wargadud Location, who held the requisite minimum qualifications as stipulated in the Scheme of Service 2015. He denied the allegations that the vacancy only targeted members of the retired chief's family, noting that the same are unfounded. He added that he appointed a five-member committee, comprising of the Assistant County Commissioner (the Chair), the Human Resource Manager (secretary), and three other head of departments to constitute the shortlisting panel. He stated that the duty of the committee was to scrutinize and to document all received applications from the interested applicants against the requirements of the Administrative Officer's Scheme of Service and constitute a shortlist.
9. He added that the panel sat on 27 th February 2026 and prepared a report that he procedurally escalated to the County Human Resource Advisory Committee for review on the 6 th March 2026 to ensure fairness, and fidelity to the Scheme of service. He stated that he on the 31 st March, 2026, received authorization to conduct interviews from the County Commissioner, Mandera. He deposed that his office received a group of people from Wargadud on 7 th April 2026, whose complaint was that there was a section of residents of Wargadud Location who were agitated as to why the current Assistant Chief, Wargadud Town Sub Location who had applied for the position of Chief II, Wargadud was not among the shortlisted candidates. He stated that the Assistant County Commissioner explained the recruitment process to the group and the minimum requirements to fill the said vacancy.
10. He added that they were further informed that the Assistant Chief was not considered for the vacancy as he had a Grade of D+ (Plus), was 31 years of age and had no diploma in the specified disciplines. He stated that following the explanation the group noted that they had been misled on facts about the recruitment process. He stated that the Petitioners wrote a letter dated 6 th April 2026 to the Regional Commissioner, North Eastern Region copied to him and received by his office on 9 th April 2026. He stated the letter raised issues on why the Assistant Chief was not shortlisted and allegations that the Interested Parties were from the same extended family of the retired chief.
11. He stated that it was impossible to tell if the candidates were related to the retired chief during the recruitment process, as the panel only relied on the identification card and academic qualifications to ensure the criteria for the position of Chief II, Wargadud were met. He insisted that the claim of nepotism did not hold water. He stated that he and the recruitment committee recommended the best three (3) candidates selected from the interviews. He added that the Regional Commissioner will forward the names to the Permanent Secretary who will advise on the suitable candidate for the position among the (3) or recommend that the position be re-advertised. He reiterated that a candidate is yet to be selected to fill the vacancy, as the Permanent Secretary can make the appointment or recommend that the recruitment process start afresh. He termed the application as an abuse of the court process and premature at this stage. He urged that the recruitment process was done legally and followed all legal procedures, thus this application is unmerited and ought to be dismissed with costs to the Respondents.
12. The 3 rd Interested Party responded to the Application vide his replying affidavit sworn on 22 nd April 2026. He deposed that Application and the Petition were misconceived, bad in law, incompetent, devoid of merit and an abuse of court process. In response to paragraph 3 of the Applicant’s affidavit, he stated that he applied for the position upon ascertaining that he had met the requirements, where the he was shortlisted and interviewed. He stated that the interview process he was subjected to was transparent, lawful, and competitive, and in accordance with applicable regulations and procedure. He confirmed that the suitable candidates were shortlisted and interviewed in the 2 nd Respondent’s offices in a fair and merit-based transparent manner. He acknowledged that he was the former chief’s son adding that he believed he was shortlisted on basis of qualification, eligibility and merit. He contended that all the Applicants were accorded an equal opportunity to compete fairly and thus, his shortlisting did not by itself constitute bias, favouritism or irregularity in the process.
13. He added that he helds the requisite academic qualifications, and was above the age of 35, having been born in 1990; attained a grade of C minus in 2019; undertook a diploma in community development & social work; undertook a computer packages course; registered afresh for KCSE in 2024 and attained a C Plain grade; and possesses the requirements on integrity, competence, suitability and eligibility. He added that his academic certificates and testimonials were genuine, valid and verifiable with the relevant institutions and thus the allegations were false. He deposed that no evidence had been tendered to demonstrate fraud, forgery, illegality, misrepresentation or non-compliance on his part. He added that the suit was intended to unjustly deny him the fruits of a lawful and competitive recruitment process.
14. He further deponed that the Applicant had failed to demonstrate any violation of the constitution, statute or rules of natural justice, and thus the orders sought were unwarranted. He stated that the Petition and the Application did not disclose any cause of action and ought to be dismissed with costs.
15. Relatedly, the Petitioners filed a second application under Article 35(1a) of the Constitution, section 4(1a) of the Access to Information Act and Rule 44 of the Employment and Labour Relations Court Procedure Rules 2024, seeking orders that:
a. Spent
b. That the Honourable Court be pleased to issue an order compelling the Registrar of Persons, who is the officer in charge of identification, registration and issuance of national identification card and as the custodian of the National Population Register to issue to the Petitioner/Applicant and or bring into this Honourable Court information relating to the 3 rd Interested Party’s acquisition of the National Identity Card issued on 28 th January 2026.
c. That the Honourable Court be pleased to grant such other and or further orders as shall be necessary to ensure the ends of justice are met.
d. That the costs of the Application be granted to the Petitioners/Applicants.
16. The Application was accompanied by the sworn affidavit of Mohamed Issack Hussein and based on the grounds that: the 3 rd Interested Party, with the assistance of persons within the office of the Registrar in Elwak, changed and manipulated his date of birth on his national identity card and thereafter obtained a new one; that it is public knowledge that the 3 rd Respondent is yet to attain 35 years of age and therefore there is reason to believe that the change was part of a wider scheme initiated by the 3 rd Interested Party’s father; that the right to access information is guaranteed by the Constitution; whereas the right to privacy is also constitutionally protected, this Court has the power to order for any private information where there was just cause; and that the instant petition challenges the 3 rd Interested Party’s qualification on basis of age and thus the information sought is relevant.
17. The 2 nd Respondent in his replying affidavit deposed that the Application was premature, devoid of merit, misconceived, and an abuse of the court process. He relied on Sections 107 and 109 of the Evidence Act (Cap 80) to assert that the Petitioners, having filed the Application making various assertions therein, bore the legal burden of proving the facts; but unfortunately, have placed no evidence before this Honorable Court to discharge that burden. He added that the Petitioners had failed to produce any documentary evidence whatsoever to support their allegations that the 3 rd Interested Party's date of birth on his National Identification Card was altered or manipulated. He contended there was no supporting evidence for the assertion that a new National Identification Card was fraudulently obtained and was insufficient in law to sustain the Orders sought herein and did not meet the threshold required to compel the Registrar of Persons to produce records before this Honourable Court.
18. He stated that the National Identification Card, bearing the date 13.03.1990 was the one he presented during the Recruitment process and they had no reason to suspect nor reject it. He insisted that the committee that was conducting the recruitment was only obligated to check the age of the interested Applicants and location that they hail from to ascertain that they met the criteria for the position of Chief Wargadud II. He reiterated that the Petitioners have failed to produce any birth certificate, hospital birth record, previous Identification card or any other official document to establish the 3 rd Interested Party's date of birth as distinct from what appears on his issued National Identification Card.
19. He further deponed that the Petitioner’s claim was unfounded as they had not identified any specific individual who could testify from direct, personal knowledge as to the 3 rd Interested Party's actual date of birth. He contended that the legally recognized manner of establishing a person's age in Kenya was by production of a Birth Certificate issued by the Registrar of Births and Deaths, or such other acceptable primary evidence as recognized under the law, and no such evidence had been placed before this Honourable Court by the Petitioners. He termed the Petitioner's Application as premature and a waste of the Court's time as the Petitioners did not first exhaust the readily available administrative remedies in ascertaining the validity of the Identification Card in question. On advice of counsel, he deposed that the Petitioners ought to have formally written to the National Registration Bureau (NRB), which is the statutory body charged with the oversight of National identification records in Kenya, requesting verification or confirmation of the 3 rd Interested Party's registration details and the history of his identification card.
20. He added that the Petitioners ought to have also formally written to the Registrar of Persons, through the Office of the Registrar of Persons in Wajir County, requesting official verification of the National Identification Card issued to the 3 rd Interested Party; and seek clarification as to whether any replacement of his identification details was lawfully effected, and thereafter awaited a formal response. As such, he urged the court to dismiss this Application with costs to the Respondents.
21. The 3 rd Interested Party responded vide has sworn affidavit dated 14 th May 2026. He denied the allegations He outlined the procedure of acquisition of an identification card. He stated that he was born in 1990 and upon attaining the age of majority, he presented himself at the office of the Registrar of Persons at Elwak where his biometrics were captured. That upon verification of his data, he was issued with an identity card which reflected his birth date as 13 th March 1990. He termed the allegations as speculative, false, and without any legal or factual basis. The Petitioner was accused of not placing any evidence of forgery, fraud, falsification, or illegality before the Court to warrant the issuance of the intrusive orders.
22. On advice of counsel, he further contended that discovery and production of documents should not be used as a fishing expedition to invade his privacy without any credible evidence of wrongdoing on his part. He added that the orders sought were prejudicial and would unjustly violate his constitutional right to privacy. He urged that the application be dismissed with costs for being an abuse of court process.
23. In rejoinder, the Petitioners in their further affidavit sworn by Mohamed Issack Hussein stated that although the right to privacy was guaranteed constitutionally, the protection was not absolute where it was satisfied that the information was necessary and relevant for the purpose sought. He denied the argument that they ought to have written to the National Registration Bureau to verify the 3 rd Interested Party’s particulars before moving the court, on ground that the same can only be availed by court order. He stated that the birth certificate is a mandatory requirement for all first-time applications. He stated that the 3 rd Interested Party’s identity card showed that the same was issued on 28 th January 2026, whereas his birth certificate was issued on 9 th May 2026; raising the issue on how he acquired an ID without a birth certificate.
24. He further queried how he registered for his KCSE in 2019 if at all he did not have a birth certificate. He reiterated that the same was an indication that it was obtained through forgery, falsification and fraud, hence the need for the order to compel the registrar to shed light into the matter. He added that the information was not meant to harass the 3 rd Interested Party or to invade his privacy but to ensure that the Court had sufficient information to reach a just and fair determination. He noted that there would be no prejudice caused to the 3 rd Interested Party if the order sought was granted.
Submissions
25. On the first Application, the Applicants submitted the issue on whether the Court should grant a temporary injunction and or conservatory order pending the hearing and determination of the Petition. Reliance was placed on Article 23(3) of the Constitution and Rule 23(1) of the Constitution of Kenya (Protection of Right and Fundamental Freedoms) Practice and Procedure Rules, 2013 to argue that this Court had power to grant the order. The Applicant outlined the applicable test for the issuance of temporary injunction to include the need to demonstrate a prima facie case with a likelihood of success, and suffer prejudice if the same wasnot granted. It was submitted that the Court will thereafter determine whether the denial or grant of the order will enhance constitutional values. It was added that the Applicant was required to further demonstrate that should the order be denied, the petition or its substratum would be rendered nugatory.
26. On prima facie case, reliance was placed on Article 10 (2) of the Constitution on national principles and Article 232 (1g) on fair competition and merit as the basis for appointment and promotion. It was contended that there was deliberate exclusion of other qualified candidates who had applied for the position contrary to equity, inclusiveness and equality.
Reliance was placed on the decision in Platinum Distillers Ltd vs Kenya Revenue Authority (Petition 83 of 2019) [209] KEHC 9419 (KLR).
27. On whether or not to grant the orders, reliance was placed on Articles 19(1) and 47 of the Constitution, to submit that the disqualification of other applicants on flimsy grounds violated their rights to lawful and procedurally fair administrative action. On whether the petition will be rendered nugatory, it was submitted that if the order was not granted, appointment would proceed thereby rendering the petition nugatory. Reliance was placed on the decision in Hassan & another v Cabinet Secretary, Ministry of Interior & Coordination & another (Petition E005 of 2025) [2025] KEHC 5898 (KLR). On public interest, it was submitted that any person appointed to the office draws a salary from public coffers and any amounts paid to the appointee shall not be recoverable in the event the Petition is successful. It was added that due to the centrality of the Chief’s Office, the appointee ought to be appointed through a process that complies with constitutional dictates to foster public trust.
28. The 2 nd Respondent whether the Applicants were entitled to the temporary injunction sought; whether the recruitment process for the position of Chief II, Wargadud Location was conducted in a transparent, legal and fair manner; whether the Applicants had provided any primary or credible evidence to substantiate allegations of nepotism and irregular shortlisting; whether the Application and Petition were premature and constitute an abuse of the court process.
29. On the first issue, it was submitted that the grant of temporary injunction was an exercise of judicial discretion paying regard to the three pillars established in Giella v Cassman Brown & Co. Ltd (1973). It was reiterated that the recruitment process followed the Revised Scheme of Service (2015) strictly and the Applicants had only relied on vague allegations of nepotism without proof. It was submitted that there is no prima facie case to warrant an injunction.
30. It was submitted that an injunction should not be granted unless the Applicant might otherwise suffer irreparable injury, that cannot be adequately compensated by an award of damages. It was submitted that the Applicants had not shown any unique or irreparable harm, since the loss of a job opportunity was a matter that can be quantified and compensated through damages. It was argued that the public interest outweighed the private interest of the Applicants. It was further submitted that due to the vitality of this position for local security and government administration, halting the recruitment would cause a vacuum in public service and harm to the public that cannot be compensated by damages. On the balance of convenience, it was submitted that if the court was in doubt, it had to decide the case on the balance of convenience. It was further argued that the balance of convenience tilted heavily in favor of the Respondents since the recruitment process was almost complete and has involved significant public resources. The Court was urged to deny the prayer for a temporary injunction.
31. On the second issue, it was submitted that the recruitment exercise was conducted in strict adherence to the Administrative Officer Scheme of Service 2015; including re-advertising the position on 28 th January 2026, when the initial round failed to attract a sufficient pool of qualified candidates. It was reiterated that the recruitment was extended to all interested persons in Wargadud Location provided they met the objective academic and age thresholds. It was urged that there existed no reason to grant injunctive orders to restrain the Respondents from appointing the qualified interested party.
32. On the third issue, it was reiterated that the exclusion of certain candidates, specifically the current Assistant Chief, was not an act of bias, but due to his failure to meet the minimum requirements. Reliance was placed on the decision Barasa v Public Service Board County Government of Trans-Nzioia & 4 others (2023) KEELRC 3184 (KLR), where the court dismissed claims of nepotism and tribalism in a recruitment exercise. It was submitted that following the reasoning in the above case, general assertions of unfairness were insufficient in a constitutional petition. It was argued that it was not possible for the panel during the screening or interview process to ascertain familial relations to the retired chief, as the assessment was based on objective, document-backed criteria. It was urged that in the absence of any documented proof of favoritism or a breach of the scheme of service, these allegation remain unfounded and did not meet the legal threshold required for judicial intervention.
33. On the forth issue, it was submitted that the instant Application was fundamentally unripe and prematurely before this Court. Reliance was placed on the decision in Safaricom Plc v Director of Criminal Investigations & 2 others; Musebe & 18 others (Interested Parties) [2026] KEHC 2214 (KLR ), that the doctrine of ripeness was a fact of the larger principle of non-justiciability designed to shield the judiciary from hypothetical or premature disputes. It was contended that for a matter to reach the threshold of ripeness, there must be a crystallization of facts grounded in a final administrative action rather than speculative fear. It was added that in the present matter, the Respondents had not taken a final administrative action that would warrant judicial intervention. It was submitted that the Applicant had not been subjected to any prejudice as the Permanent Secretary retained the discretion to either appoint a candidate from the recommended list or order a fresh recruitment exercise.
34. It was added that the Court’s interference at this juncture with no good reason and to stop qualified Persons from an opportunity to take the position
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