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ELRCDismissedCause No. (not stated in extract) - Employment and Labour Relations Court, Nairobi; Notice of Motion dated 14.5.2018· [2018] KEELRC 1774 (KLR)

Monica Mellan Achode & another v National Council for Law Reporting & another [2018] KEELRC 1774 (KLR)

Employment and Labour Relations Court of Kenya
19 June 2018
OMOnesmus N. Makau
3,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to stop the National Council for Law Reporting from filling its Deputy CEO post, holding the recruitment was lawful and the acting Deputy CEO had no automatic right to the job.

What this practically means

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Executive summary

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The claimants, the former acting Deputy CEO of the National Council for Law Reporting and the Council's secretary, moved the Court by Notice of Motion dated 14.5.2018 seeking interim injunctions to restrain the first respondent from filling the post of Deputy Chief Executive Officer and the second respondent (the Public Service Commission's delegate) from approving any such appointment, pending trial. The first respondent opposed, arguing the recruitment of Janet Mbithe Munywoki was complete and lawful; the second respondent argued misjoinder and that the legality of the recruitment required evidence at trial. The court applied the Giella v Caseman Brown test. It held that although the second respondent, acting under a PSC delegation instrument pursuant to Article 234(5) of the Constitution and section 27 of the State Corporations Act, had barred the first respondent from recruiting pending approval of its HR policy instruments, the approval granted by the Head of the Public Service under National Treasury Circular No. 20/2015 (which exempted replacement of established professional posts from the employment freeze) took precedence. The first respondent, having sole mandate under section 9(4) of the NCLR Act, conducted an open and competitive recruitment. The first claimant exhibited no credentials and no legal basis for her alleged expectation of appointment. The court found no prima facie case, declined to assess irreparable harm and balance of convenience, dismissed the motion with no order as to costs, and directed that Janet Mbithe Munywoki be enjoined as a defendant.

Key legal issues

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01

Whether the applicants established a prima facie case for interlocutory injunction

Holding

No prima facie case established; the impugned recruitment of the Deputy CEO was substantively and procedurally lawful

Reasoning

The court found that under the delegation instrument executed by the PSC pursuant to Article 234(5) of the Constitution and section 27 of the State Corporations Act, the second respondent oversaw HR matters for state corporations. The first respondent had not obtained approval of its HR instruments and was barred from recruiting, but the Head of the Public Service's approval under Circular No. 20/2015, exempting replacement of established professional posts from the employment freeze, took precedence. The first respondent had the sole mandate under section 9(4) of the NCLR Act to appoint the Deputy CEO, and the process was open and competitive.

p. 6
02

Whether the first claimant had a reasonable expectation of being appointed substantive Deputy CEO

Holding

No; she produced no credentials and acting beyond the usual six-month period conferred no right to confirmation

Reasoning

The first claimant alleged she met the minimum qualifications and had a legitimate expectation from acting in the office since 6.10.2015, but exhibited no credentials and no legal basis for the expectation. The court noted HR instruments generally allow acting for six months without any guarantee of confirmation, and that she had acted for over two years.

p. 6

Legal principles established

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  • Recruitment in the public service requires proof of a vacancy, Treasury funding and conformity with government policy administered by the PSC through its delegate
  • In case of conflict in correspondence between the PSC's delegate (second respondent) and the Secretary of State Corporations Oversight in the office of the Head of the Public Service, the latter takes precedence
  • Where no prima facie case is established, the court need not consider irreparable harm and balance of convenience

Court orders

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  1. 1.Applicants' Notice of Motion dated 14.5.2018 dismissed
  2. 2.No order as to costs
  3. 3.Janet Mbithe Munywoki to be enjoined to the suit as a defendant forthwith

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 232, 234(2)(b),(c),(d),(e),(f),(g), 234(5)
  • State Corporations Actsections 5(3), 27
  • National Council for Law Reporting Actsection 9(4)
  • Employment Actsection 46

Cases cited (2)

  • Giella Vs Caseman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya & 2 others
    [2003] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (continued employment dispute; section 46 Employment Act invoked by claimants)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Monica Mellan Achode & another v National Council for Law Reporting & another [2018] KEELRC 1774 (KLR)", Case Analysis (2018). Cause No. (not stated in extract) - Employment and Labour Relations Court, Nairobi; Notice of Motion dated 14.5.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1774/eng@2018-06-19

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