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ELRCPartially AllowedPetition dated 23/7/2020· [2020] KEELRC 422 (KLR)

Abdi Mohamed Abdullahi v The Board Chairman, National Water Harvesting & Storage Authority & 3 others [2020] KEELRC 422 (KLR)

Employment and Labour Relations Court
29 September 2020
HWHellen Wasilwa
4,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a public recruitment that stalled midway was still 'open', so the authority couldn't restart it — it had to appoint a runner-up candidate.

What this practically means

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Executive summary

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The Petitioner, an applicant in the National Water Harvesting and Storage Authority's 2019 recruitment for Chief Executive Officer, petitioned challenging the Respondents' fresh recruitment by advertisement of 30th June 2020. The 2019 process had produced three recommended candidates: Eng. Sammy Mburu (81.78%), Andrew Mukhisa Wanyonyi (80.11%) and Ali Boru (76.44%). Before appointment, the top candidate was arrested and charged; the second candidate was reported by the EACC to have integrity issues; the top candidate later died. The Respondents then advertised afresh. The 1st and 2nd Respondents opposed, arguing the 2019 process was concluded, that the candidates had no legitimate expectation of appointment (citing Magerer Langat and Kalpana Rawal), that the court could not compel appointment of a runner-up, and that the petition offended separation of powers and lacked merit. The 3rd and 4th Respondents additionally challenged the Petitioner's locus. The court framed three issues: whether the 2019 process was concluded, the validity of the subsequent advertisement, and remedies. It found the 2019 process was never concluded because no substantive appointment was made, the remaining candidates were never informed of the adverse reports, and the post-recommendation EACC query was made in bad faith, contrary to Articles 10, 35 and 232. Consequently the June 2020 advert was declared unconstitutional, null and void ab initio and cancelled; the 2019 process was declared valid; and the 3rd Respondent was ordered to appoint a CEO from the 2nd or 3rd top candidate within 7 days. Each party was to bear its own costs. The petition substantially succeeded, though the specific mandatory order sought against Wanyonyi and facilitation/salary orders were not granted in the terms prayed.

Key legal issues

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01

Whether the 2019 recruitment process for the CEO position was concluded

Holding

The process was not concluded; it remained hanging because no substantive appointment was made and the remaining candidates were never communicated with

Reasoning

The top three candidates were recommended for appointment but before any was substantively appointed the top candidate was charged in court. The Respondents then sought EACC reports on the other candidates only after recommending the top candidate, never communicated adverse findings to them, and never explained why the 3rd candidate could not be appointed. Transparency under Articles 10 and 232 required sharing information even with losing candidates, which was not done, so the process remained incomplete.

p. 7
02

Validity of the subsequent 30th June 2020 advertisement

Holding

Since the 2019 process was never closed, the Respondents could not commence a fresh recruitment for the same position; the June 2020 advert was cancelled

Reasoning

Having found the first process unconcluded, the court held that there could be no subsequent recruitment unless the Respondents first closed the initial process. The attempted restart via the 30th June 2020 advertisement was therefore invalid and was cancelled altogether, and the earlier process was declared valid and lawful.

p. 7
03

Respondents' reliance on legitimate expectation jurisprudence and separation of powers

Holding

The court did not decide the petition on legitimate expectation doctrine; it rested on non-conclusion of the process and breach of constitutional values of transparency and accountability

Reasoning

The Respondents had argued, citing Magerer Langat and Kalpana Rawal, that legitimate expectation without detriment cannot sustain an action, and that granting the orders would offend separation of powers. The court did not adopt or discuss these authorities in its analysis; instead it found the process unconcluded and the Respondents' conduct in breach of Articles 10, 35 and 232, grounding relief there.

p. 7

Legal principles established

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  • A recruitment process is not concluded until a substantive appointment is made; where the process is left hanging, the appointing authority must communicate with the remaining recommended candidates before restarting recruitment
  • Candidates shortlisted and recommended for appointment after full clearances have passed the initial integrity test; a subsequent EACC query made after recommending the top candidate is in bad faith

Court orders

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  1. 1.Declaration that the recruitment process ensuing from Re-Advertisement Notice Ref NWHSA/CEO/2019/2020/02 dated 30th June, 2020 and/or any other advertisement not being from Re-Advertisement Notice Ref NWHSA/CEO/2018/2019/01 dated 11th June, 2019 is unconstitutional, null and void ab initio and in violation of the law
  2. 2.Declaration that the recruitment process ensuing from Re-Advertisement Notice Ref NWHSA/CEO/2018/2019/01 dated 11th June, 2019 met all constitutional and legal requirements and was thus valid and lawful
  3. 3.The 3rd Respondent to appoint a Chief Executive Officer from the 2nd top most candidate or 3rd top most as the case may be within the next 7 days
  4. 4.Each Party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1)(c), 19, 20, 22, 23, 24, 35, 73, 159(1), 232, 258(1)
  • Water ActSection 33(1)
  • Information ActSection 5(1)
  • Public Service (Values and Principles) Act, 2015Section 10(1)
  • Mwongozo The Code of Governance for State CorporationsClause 1.2
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Service of May, 2016Clauses B.5 and B.22
  • Public Service Regulations, 2018Regulation 22(1)(a)

Cases cited (6)

  • Re the Matter of the Interim Independent Electoral Commission Advisory Opinion No. 2 of 2011
  • Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & Another
    [2017] eKLR
  • Trusted Society of Human Rights Vs The Attorney General & Others
    [2012] eKLR
  • Magerer Langat & Another Vs Paul Kiprono Chepkwony, The Governor County Government of Kericho & 2 Others
    [2020] eKLR
  • Justice Kalpana H. Rawal Vs Judicial Service Commission & 3 Others
    [2016]
  • Republic versus The Board of Directors, National Water and Harvesting Authority & Another Ex Parte Alex Migwi Mwangi (JR No. 10 of 2020)
Jurisdiction invoked
Articles 22, 23 and 258(1) 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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Later judgments citing this (2)

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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, "Abdi Mohamed Abdullahi v The Board Chairman, National Water Harvesting & Storage Authority & 3 others [2020] KEELRC 422 (KLR)", Case Analysis (2020). Petition dated 23/7/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/422/eng@2020-09-29

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