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ELRCPartially AllowedCause No 2144 of 2012· [2015] KEELRC 1251 (KLR)

Jane Achieng & another v University of Nairobi [2015] KEELRC 1251 (KLR)

Employment and Labour Relations Court
10 April 2015
LNLinnet Ndolo
2,528 words in judgment
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The bottom line

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Kenya's Employment Court found the University of Nairobi manipulated a librarian recruitment process, ordering fair, non-discriminatory hiring, though existing appointments stood.

What this practically means

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Executive summary

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The Claimants, library employees of the University of Nairobi, challenged an April 2012 recruitment exercise for 8 Librarian positions in which they applied but were not shortlisted. They alleged the failure to shortlist them was discriminatory, contrary to the Constitution and the Employment Act, and sought a declaration that the recruitment was illegal, null and void, plus general and exemplary damages and orders for specific performance. The Respondent denied discrimination, contending the Claimants lacked the minimum qualifications of a Masters Degree in Library and Information Science, three years' post-qualification experience and ICT knowledge, and that the process was conducted impartially. The Court distilled two issues: whether the recruitment was discriminatory, and what remedies were available. Applying Article 27 of the Constitution and Section 5 of the Employment Act, and drawing on South African authority, the Court held the burden of proving fairness shifts to the employer. The advertisement deviated from the Respondent's own Kagiko Report policy by reducing the experience requirement from 6 to 3 years without explanation, and the Respondent failed to respond to allegations of non-compliant promotions and ethnic imbalance. The Court concluded the recruitment was knowingly manipulated to the Claimants' detriment. However, because three appointments had been made and binding contracts issued, the Court declined to grant the declaration, damages and specific performance, instead directing strict adherence to law and internal policy in filling the five existing vacancies and requiring attention to ethnic diversity in future recruitment. Costs were awarded to the Claimants.

Key legal issues

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01

Whether the Respondent's recruitment for the position of Librarian was discriminatory against the Claimants

Holding

The recruitment was discriminatory; the Respondent knowingly manipulated the process by departing from the Kagiko Report's minimum qualifications without explanation and by failing to respond to the Claimants' allegations

Reasoning

The advertisement reduced the Kagiko Report's experience requirement from 6 years to 3 years with no explanation. The Respondent failed to rebut allegations of non-compliant promotions and ethnic imbalance. Under Section 5 of the Employment Act and Article 27 of the Constitution, the burden shifted to the employer to prove fairness. Its silence left the Court to conclude the process was manipulated to the Claimants' detriment.

p. 5
02

What remedies are available to the Claimants

Holding

The declarations, damages and specific performance sought were refused; instead, the Respondent was directed to adhere to its internal policies and the law in future recruitment and to consider ethnic diversity

Reasoning

Three of eight Librarian positions had been filled with binding contracts issued, so nullification and specific performance were impractical; damages had no legal basis. Five vacancies remained, allowing prospective directions enforcing the law, internal policy and the constitutional value of ethnic diversity in public recruitment.

p. 6

Legal principles established

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  • Where an allegation of unfair discrimination is made by an employee, the burden of proof shifts to the employer to prove that the action complained of was fair
  • The Court will respect employer decisions that comply with the law and internal policies, but is obliged to intervene where the employer's action fails to comply with legal and policy parameters

Court orders

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  1. 1.In filling the existing vacancies within the Library establishment and within the University generally, the Respondent shall adhere strictly to the law and its own internal policies and guidelines
  2. 2.In undertaking future recruitment, the University shall examine its establishment mix bearing in mind the ethnic diversity in this Country
  3. 3.The Respondent will meet the costs of this case

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Section 5(1), (2) and (3)

Cases cited (3)

  • STAWU obo Members Vs South African Airways (Pty) Ltd and Others
    (JAS54/13) [2014] ZALAC 40; [2015] 2BLLR 137 (LAC) 14
  • Jared Juma Vs Kenya Broadcasting Corporation & 3 Others
    [2014] eKLR
  • Independent Oversight Authority & Another Vs Attorney General & 660 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya, 2010 over employment and labour disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Achieng & another v University of Nairobi [2015] KEELRC 1251 (KLR)", Case Analysis (2015). Cause No 2144 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1251/eng@2015-04-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.