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ELRCPartially AllowedPetition dated 5th February 2018· [2019] KEELRC 1166 (KLR)

Vincent Mariita Omao v Chief Executive Officer National Government Affirmative Action Fund & 2 others [2019] KEELRC 1166 (KLR)

Employment and Labour Relations Court
11 July 2019
MNMathews N. Nduma
1,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employer cannot re-advertise a filled job without giving the selected candidate written reasons for the reversal.

What this practically means

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Executive summary

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The petitioner, acting in the public interest under Articles 22 and 258 of the Constitution, challenged the re-advertisement of six positions, including that of County Coordinator, Nyamira County, by the 1st respondent after a concluded recruitment exercise in which Jared Ogecha Ongiri had emerged the best candidate and his name forwarded to the Board for appointment. The 1st respondent justified the re-advertisement on the basis of unsatisfactory responses by Mr. Ongiri to internal audit queries concerning expenditure in Nyamira County during his prior tenure as County Coordinator, and the failure of the second-best candidate to meet the minimum pass mark. The 2nd respondent denied involvement in the recruitment and sought dismissal of the petition with costs. The court framed a single issue: whether the 1st respondent violated Article 47 of the Constitution by denying Mr. Ongiri fair administrative action. Following and agreeing with Wasilwa J in Wilfred Otieno Okoth v County Government of Kisumu, the court held that once a candidate has been selected, the employer must give written reasons before reversing the selection and re-advertising the position; no such communication was made here. The court declared the re-advertisement un-procedural and in breach of Article 47, directed the 1st respondent to cancel it and issue Mr. Ongiri an appointment letter, and awarded costs against the 1st respondent. The claim of misuse of public funds failed for lack of evidence.

Key legal issues

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01

Whether re-advertising a concluded recruitment exercise without giving the selected candidate written reasons violates Article 47 of the Constitution

Holding

Yes - the 1st respondent violated Mr. Jared Ongiri Ogecha's right to fair administrative action under Article 47

Reasoning

The candidate had already been found suitable and his name forwarded to the Board for appointment. The 1st respondent re-advertised the position internally following audit queries arising from his prior tenure as County Coordinator, but never communicated to him the reasons for reversing his selection. The court adopted the reasoning of Wasilwa J in Wilfred Otieno Okoth v County Government of Kisumu, holding that affected candidates have a right to know why they were not picked, grounded in Articles 47 and 35(1).

p. 2

Legal principles established

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  • Where a recruitment exercise has been concluded and a successful candidate selected, the employer must give written reasons to that candidate before reversing the selection and re-advertising the position; failure to do so violates Article 47

Court orders

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  1. 1.The internal re-advertisement of the position of County Coordinator Nyamira County is declared un-procedural and in breach of Article 47 of the Constitution of Kenya 2010
  2. 2.A declaration that the conduct by the 1st respondent violated the right of Mr. Jared Ongiri Ogecha protected under Article 47 of the Constitution of Kenya 2010
  3. 3.The 1st respondent is directed to cancel the said re-advertisement of the position of the County Coordinator, Nyamira County and proceed to issue the selected candidate Mr. Jared Ongiri Ogecha with the letter of appointment
  4. 4.The 1st respondent to pay the costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1) and (2)
  • Constitution of KenyaArticle 35(1)
  • Constitution of KenyaArticles 22 and 258

Cases cited (1)

  • Wilfred Otieno Okoth vs County Government of Kisumu and others
    Petition number 248 of 2014
Jurisdiction invoked
Articles 22, 47 and 258 of the Constitution of Kenya 2010

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, "Vincent Mariita Omao v Chief Executive Officer National Government Affirmative Action Fund & 2 others [2019] KEELRC 1166 (KLR)", Case Analysis (2019). Petition dated 5th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1166/eng@2019-07-11

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