REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
JUDICIAL REVIEW NO. E054 OF 2026
OKINYI JAKIJA JULIUS ………..…………………………….. PETITIONER
VERSUS
KENYA RAILWAYS CORPORATION………………………1ST RESPONDENT
AFRICA STAR RAILWAY OPERATION COMPANY….....2ND RESPONDENT
EDNA MALOMBE…………………………………………… 3RD RESPONDENT
JUDGMENT
The applicant filed the instant Originating Motion dated 9th June 2026 under Certificate of Urgency on even date seeking orders that:
1. Spent.
2. An order Prohibiting, restraining the 1st Respondent from implementing, acting upon or enforcing the impugned decision pending lawful reconsideration.
3. A declaration that the Respondent’s exclusion of the applicant from onboarding was unlawful, unfair, unreasonable and unconstitutional.
4. A declaration that the applicant had a legitimate expectation to be absorbed and on boarded following transfer of operations from the 2nd Respondent to the 1st Respondent.
5. An order of CERTIORARI do issue to bring into this court and quash the decision(s) directives(s) and/or omission of the 1st Respondent excluding the Applicant from the employment onboarding process following the transfer of operational responsibilities from the 2nd Respondent effective 1st January 2026.
6. An order of MANDAMUS do issue compelling and directing the 1st Respondent to onboard and deploy the Applicant to the position of Assistant Locomotive Driver or reconsideration of the Applicant’s on boarding fairly, lawfully and in accordance with Article 41 Article 47 of the Constitution of Kenya and the Fair Administrative Action Act.
7. An order of compensation for:
(a) violation of the Applicants Constitutional rights in the sum of not less than Kshs.3,000,000.00 or any other amount as assessed by the court.
(b) Loss of earnings since 2nd January 2026 until the matter is settled.
(c) Continuing salary and benefits until determination.
(d) Salary arrears from 2nd January 2026 including but limited to benefits pension contributions and allowance.
8. A declaration that the 1st Respondent’s exclusion of the Applicant from the onboarding process without notice, hearing, and written reasons or any lawful administrative process is unlawful, null and void and of no legal effect.
9. A declaration that even if criminal proceedings existed, the Applicant was entitled to procedural fairness, written notice with reason, and an opportunity to respond and reliance on the pending criminal proceedings as basis for excluding the applicant constitutes a violation of the presumption of innocence guaranteed under Article 50 (2) (a) of the Constitution of Kenya.
10. Spent.
11. The Respondent bears the costs of this Application.
12. Such further or other relief as this Honourable Court may deem fit and to grant.
The Originating Motion is expressed under Articles 23(3), 47 and 50 of the Constitution of Kenya Section 8, 9 and 11 of the Fair Administrative Action Act and Rules 10 (2) of the Fair Administrative Action Rules 2024 and based on the grounds enumerated on its face and the Supporting Affidavit of the Applicant who deposes that he was an employee of the 2nd Respondent and served diligently and had no adverse record and was a team leader of this onboarding cohort.
The Applicant deposes that on 1st January 2026 the operational responsibility for railway services was formally transferred from the 2nd to the 1st Respondent and joint onboarding exercise was conducted between the respondents through which the 2nd Respondent’s employees were identified assessed and processed for absorption into the 1st respondent’s employment.
The applicant was identified for onboarding as Assistant Locomotor Driver with the 1st Respondent and the requite contract was prepared by the 1st Respondent and it was shown to him on 2nd January 2026 and witnessed the signing of contracts by his colleagues that he did not sign his and was requested to visit the office after two (2) weeks.
The affiant deposed that on 15th December 2025, he was arrested and temporarily remanded in custody and notified the department’s supervisor of the 2nd Respondent and was granted bail two (2) weeks later and resumed reporting for work on 30th December 2025 with no objection and discharged duties satisfactorily until he was orally told by the 3rd Respondent on 9th March 20233 to stay away from work owing to the criminal case and would not be onboarded.
The affiant deposed that his exclusion from the onboarding process was unilateral, arbitrary and procedurally defective for offending the principles of fair administrative action and fair labour practice and his counsel wrote a demand letter to the Managing Director of the 1st Respondent but it was not responded to and physical follow ups yielded nothing as did the applicants visit on 22nd May 2026 and none had been rendered todate.
The affiant deposes that the exclusion from onboarding had accessioned financial hardship, mental distress and professional prejudice.
That the processing of the onboarding jointly by the 2nd and 1st Respondents prior to the transfer date, preparation of contract being part of the cohort being received back after bail evinced a clear and subsisting legitimate expectation of being onboarded and the exclusion was unconstitutional and unlawful and the grounds for summary dismissal did not include criminal charges.
1st Respondent’s case
In opposition to the Originating Motion, Edna Malombe, the Senior Human Resource Officer of the 1st Respondent swore a Replying Affidavit deposing that the applicant had no contractual relationship with the 1st Respondent, a fact the applicant had deponed on onboarding had not been concluded and the 1st Respondent could conduct background checks before making a decision which showed that the applicant had a pending criminal case and the principle of legitimate expectation could not arise as the parties had no contractual relationship and Section 44 (4) of the Employment Act was inapplicable.
That no disciplinary issue arose between the 1st Respondent and the applicant, the mechanism was inapplicable and finalization of its post-transition structure was a legitimate administrative process.
The affiant deponed that the applicant had no vested right to a specific position that had been finalized and a conservatory order would paralyze administrative and operational transition mandate.
That the applicant not made a case for any of the orders sought to issue.
2nd Respondent’s case
Mr. Calbert Kimani, the 2nd Respondent’s Deputy Human Resource Manager, vide a Replying Affidavit sworn on 29th June 2026 deponed that the applicant was an employee of the 2nd Respondent until 31st December, 2025 as per the letter of termination of employment dated 29th December, 2029.
That operation and maintenance of the Standard Gauge Railway (SGR) was handed over to the 1st Respondent effective January 1st 202 and relationship between the Applicant and the 2nd Respondent ended on 31st December 2025. That the 1st Respondent was solely responsible for onboarding, recruitment and execution of employment contracts and deployment of employees and the 2nd Respondent had no role in the issuance of contract of employment to employees identified for transition.
That the joinder of the 2nd Respondent was unnecessary.
Applicant’s Submissions
On legitimate expectation of being onboard, counsel cited the decision in Peter O Nyakundi & 68 other v Principal Secretary State Department of Planning Ministry of Devolution & Planning & another (2016) eKLR for the proposition that general averments which do not respond to sworn allegations could not amount to a proper and valid denial of allegations on oath.
Reliance was also placed on the decision Kennedy Otieno Odiyo v Kenya Electricity Generating Co. Ltd (2010) eKLR for the proposition that the absence of a Replying Affidavit rebutting the averment in a Supporting Affidavit is deemed to be a no answer to the claim, to urge that the 1st Respondent did not deny the allegation that the applicant’s contract had been prepared, was shown to him or that he was there when others signed theirs.
That the applicant’s exit from the 2nd Respondent was a handover of function to the 1st Respondent and had a January payslip with leave pay only and was thus treated as a transitioning employee.
Reliance was placed on Communications Commission of Kenya & 5 others v Royal Medial Service Ltd & 5 others (2014) eKLR on the doctrine of legitimate expectation, to urge that the expectation could arise from a representation, conduct or past practice.
Further reliance was placed on Republic v Principal Secretary Ministry of Transport Housing & Urban Development Ex parte Soweto Residents Forum CBC (2019) eKLR on the two-step inquiry on the expectation to urge that 1st Respondents conduct of identifying the applicant for absorption and preparing his contract, including him in the onboarding cohort and receiving him back was an unambiguous and consistent course of conduct capable of creating a legitimate expectation that the process had substantially been completed and public interest could not reverse the process in this instance.
As to whether exclusion based on a pending criminal case was lawful. Counsel submitted that that every accused person was presumed innocent until the contrary in proved citing Shop and Deliver Ltd t/a Betika v Njagi (2023) KEELRC 228 (KLR) for the proposition that a charge sheet was not proof of guilt.
Reliance was further placed on Section 44(4) of the Employment Act on termination of employment.
As to whether the 1st Respondent violated the applicant’s right to fair administrative action Counsel submitted that the 1st Respondent’s decision was made in violation of all tenets of fair administrative action citing Edwin Harold Dande & 3 others v Directorate of Public Prosecutions & 2 others.
On whether the orders sought ought to issue, reliance was placed on Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & 9 other (1997) eKLR on the order of mandamus.
Counsel urged that the reliefs sought were deserving.
1st and 3rd Respondent’s Submissions
As to whether the applicant properly invoked the principle of legitimate expectation, reliance was placed on the sentiments of the court in Communications Commission of Kenya & 5 others v Royal Media Services & 5 others (Supra) and Republic v Kenya Revenue Authority Ex Parte M-Kopa Ltd, to urge that in the instant case there was no contractual relationship between the parties for the expectation to arise and the applicant had no locus standi to claim legitimate expectation.
Reliance was also placed on the decision in Teresa Carlo Omondi v Transparency International – Kenya (2017) eKLR on the burden of proof being borne by the employee to submit that the applicant had failed to discharge the burden of proof that he had a legitimate expectation since employment did not crystallize and the process was conducted with utmost good faith transparently and the applicant was notified of the outcome.
On the reliefs sought, counsel urged that court to deny the same on the premises that they had no basis and the motion be dismissed with costs.
Analysis
Having considered the applicant’s case, 1st and 2nd Respondent’s rebuttal and submissions, the issues for determination are;
(i) Whether the applicant had a legitimate expectation that he would be onboarded by the 1st Respondent and;
(ii) Whether the 1st Respondent’s decision was in violation of the right to fair administrative action;
(iii) Whether the applicant is entitled to the reliefs sought.
Before delving into the issues highlighted above, a brief background is necessary.
From the documents on records, it is discernible that the applicant was an employee of the 2nd Respondent, as an Assistant Locomotive Driver until 31st December 2025 when the two separated pursuant to a letter of termination of employment dated 29th December 2025. A copy of the letter was availed by the 2nd Respondent.
From the contents of the letter, it is clear that the termination of employment was not occasioned by the applicant’s nefarious or egregious conduct but on account of an operation and maintenance agreement between the 1`st and 2nd Respondent under which the applicant’s section/unit function would be handed over to the 1st Respondent effective 1st January 2026. Also decipherable is the fact that the two Respondents had a Disengagement Plan outlined in the Technical Approach and Methodology on personnel with Kenya Railways.
None of the Respondent’s availed the document for the courts perusal on how staff would be onboarded and retained by the 1st Respondent.
While the applicants counsel submitted that the 1st Respondent’s conduct created a legitimate expectation of onboarding of the applicant, counsel for the Respondent submitted that the applicant had no locus standi to claim legitimate expectation.
The principles that govern the invocation of the doctrine of legitimate expectation are well settled.
In Fanikiwa Ltd & 3 others v Sirikwa Squatters Group & 17 others (2023) KESC 105 (KLR), the Supreme Court held;
87.”The principle of legitimate expectation imposes a duty to act fairly and to honour reasonable expectation raised by the conduct of a public authority. If a public body has raised expectations that it will in future undertake a certain course of action, then it should ordinarily fulfil those expectations. This is important for the promotion of certainty and consistency on public administration.
88. For an individual to invoke the principle of legitimate expectation, an expectation must have been induced by some conduct of the public authority. The principle extends to any individual who is in a situation in which it appears that the administration’s conduct had led him to entertain certain expectations.
89. It is important to point out that the principle protects only those expectations which have arisen through the conduct of the administrative body concerned and not those which have arisen as a result of an individual’s subjective hopes. Put differently, it is concerned with upholding trust in the administration rather than protecting expectation which the individual has decided to entertain at his or her own risk.
90. This means that only reasonable expectations will be afforded protection by the law. An individual must hold an expectation which is reasonable to have in light of the prevailing circumstances. It is in appreciation of this that this court pronounced itself in Kenya Revenue Authority v Export Trading Co. Ltd (2022) KESC 31 (KLR) as follows at paragraph 52-53
“… Legitimate expectation may take many forms. It may take the form of an expectation to succeed in a request placed before the decision maker or it may take the objective form that a party may legitimately expect that before a decision that may be prejudicial is taken, one shall be afforded a hearing.
Respectfully, we take the view that the question of whether a legitimate expectation arose is more than a factual question. It is not merely confirmed to whether an expectation exists in the mind of an aggrieved party, but whether viewed objectively, such expectation is in a legal sense legitimate.”
As this court has emphasized above, not just any promise will do; the promise must be one giving rise to a legitimate expectation. Certain requirements must also be met for a promise to generate a legitimate expectation. This court pronounced itself on these requirements in Communication Commission of Kenya & 5 others v Royal Medial Services Ltd & 5 others (SC Petition No. 14, 14A, 14B, and 14c OF 2014 (2014) eKLR as consolidated (Communications Commission of Kenya) and we provided the following guidelines at paragraph 269;
“The emerging principles may be succinctly set out as follows:
a. There must be an express, clear and unambiguous promise by a public authority,
b. The expectation itself must be reasonable,
c. The representation must be one which it was competent and lawful for the decision maker to make; and
d. There cannot be a legitimate expectation against clear provisions of the law or the constitution.”
From the foregoing, and contrary to the Respondents counsel’s submission and averment by the affiant, legitimate expectation may arise in multifarious circumstances including those in which no contractual relationships existed a priori like in the instant case.
Applying these principles to the instant case, the court is persuaded that the 1st Respondent’s conduct towards the applicant created an expectation that he would be onboarded.
The applicant’s uncontroverted evidence is that he was among the employees identified and cleared for onboarding as an Assistant Locomotive Driver. Under paragraphs 5 and 6 of the Supporting Affidavit, the applicant laid it bare that he attended an onboarding session with his colleagues, was shown his contract document but was not allowed to sign it but requested to return in two weeks to sign and continued rendering services until 9th March 2026. Similarly, the 1st Respondent welcomed him back after he secured bail and was released.
By having his name on the list of those cleared for onboarding, attending a session 2nd January 2026, having seen his contractual document prepared by the 1st Respondent and having rendered services for over two months after the transfer, the applicant had not only an expectation but a reasonable expectation that he would be onboarded. A legitimate expectation and the 1st Respondent ought to have onboarded him. Otherwise, he should not have been involved in the onboarding sessions nor be shown his contractual document.
The 1st Respondent ought to have excluded him from any of its activities effective 1st January 2026 and informed him unequivocally that he would not be onboarded. Unfortunately, the 1st Respondent planted the expectation and nurtured it to maturity and cannot be heard to allege otherwise bearing in mind that it did not give the applicant notice that it would not onboard him.
Flowing from the foregoing, the court finds that the Applicant had a legitimate expectation that he would be onboarded by the 1st Respondent and possibly in the same position as he was.
As to whether the 1st Respondent violated the applicant’s right to fair administrative action, the court is persuaded that the 1st Respondent ought to have given the applicant a letter explaining to him why they could not onboard him and it ought to have been done in early January 2026.
Needless to belabour, the applicant was not an employee of the 1st Respondent and it was not bound to give him a new contract. However, by its conduct the 1st Respondent represented it to the applicant that he would sign the contract later and left him on tenterhooks until 9th March 2026.
The fact that the 1st Respondent did not chase him away before then created the expectation and the 1st Respondent ought to have given him formal reasons for refusing to onboard him. This is more so because the human resource department was aware that he had been arrested on 15th December 2026 and did not object to his reporting to work till March 2026.
In the circumstances of this case, the court finds that the Respondent did not violate the applicant’s right to fair administrative action or other constitutional rights.
In the upshot, the orders that commend themselves, are;
a) Declaration that the applicant had a legitimate expectation to be absorbed and onboarded following the transfer of operations from the 2nd Respondent to the 1st Respondent.
b) An order CERTIORARI to bring into this Honourable Court and quash the decision on directive of the 1st Respondent excluding the applicant from onboarding process following the transfer of operational responsibilities from the 2nd Respondent to the 1st Respondent effective 1st-January 2026.
c) An order of MANDAMUS compelling and directing the 1st Respondent to reconsider the applicant’s onboarding fairly, objectively and in accordance with the law.
d) Costs of the suit at ½ scale.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH JULY, 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 E054 OF 20262 OF 14 |