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ELRCDismissedPetition No E045 of 2021· [2022] KEELRC 864 (KLR)

William Ndegwa Githungo v Public Service Commission & 3 others [2022] KEELRC 864 (KLR)

Employment and Labour Relations Court
8 February 2022
MOMaureen Onyango
3,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employers can lawfully reject job applicants who do not meet the exact qualifications stated in the job advertisement.

What this practically means

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Executive summary

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The Petitioner, a meteorologist employed in the Kenya Meteorological Department since 1989 and promoted to Assistant Director in 2010, petitioned after he was not shortlisted for the position of Senior Assistant Director of Meteorological Services (Job Group Q) advertised as V/No. 293/2017, despite having acted in that capacity in 2017. He sought declaratory orders that qualifications for meteorological work are governed solely by the WMO Convention, declarations that his dignity and right to free and fair employment were violated, and monetary compensation exceeding Kshs. 8.5 million. The Respondents opposed, contending that the Petitioner lacked the requisite Master of Science degree in Meteorology (his Masters being an MBA), that recruitment is a managerial function, and that the suit was moot and filed after inordinate delay, relying on Meme v Republic on imprecise constitutional pleadings. The court framed three issues: minimum qualifications, infringement of rights, and entitlement to reliefs. It held that the advertised requirement of a Master of Science degree in Meteorology was not met by the Petitioner's MBA, and that his appeals against non-shortlisting were properly disallowed. On discrimination, the court found no evidence of differential treatment from those shortlisted or that others were favoured. The court declined to interfere with a managerial recruitment function absent proof of rights infringement or procedural flaw. The Petition was dismissed in its entirety, with each party bearing its own costs. Judgment was delivered virtually pursuant to COVID-19 directives and the overriding objective.

Key legal issues

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01

Whether the Petitioner met the minimum requirements for shortlisting

Holding

He did not; the advertised post required a Master of Science degree in Meteorology or equivalent, while the Petitioner held an MBA

Reasoning

The advertisement V/No. 293/2017 for Job Group Q expressly required a Master of Science degree in Meteorology or equivalent qualifications. The Petitioner's Masters degree was in Business Administration, which the Commission advised was not relevant. His appeal against non-shortlisting was disallowed on that ground, and the court found he did not qualify to be shortlisted for interview.

p. 6
02

Whether the Petitioner's rights were infringed by the failure to shortlist him

Holding

No infringement or discrimination was established

Reasoning

The Petitioner claimed discrimination in the recruitment process. Applying the definition of discrimination, the court found he produced no evidence of differential treatment compared to those shortlisted, no evidence that others were favoured, and no evidence that the Respondents departed from previous practice. The failure to shortlist was a lawful human resource function based on the qualifications requirement.

p. 6
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Not entitled; petition dismissed

Reasoning

Having found that the Petitioner did not meet the minimum qualifications and failed to prove discrimination, the court found no merit in the petition and dismissed it. Conservatory orders sought in the pending application fell away with the petition. Costs were ordered to be borne by each party.

p. 6

Legal principles established

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  • Recruitment is a managerial function with which the court will interfere sparingly and only upon justifiable reasons where constitutional rights are infringed or the process is flawed
  • A claimant alleging discrimination must demonstrate differential treatment or that others were favoured contrary to previous practice

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Employment ActSection 5(3)(b) (2007)
  • Pensions ActCAP 189
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Meme v Republic
    [2004] eKLR
  • Jane Achieng & Another v University of Nairobi
    [2015] eKLR
  • Daniel Kaminjia & 3 Others (Suing as Westland Environment Caretaker Group) v County Government of Nairobi
    [2019] eKLR
  • Geoffrey Mworia v Water Resources Management Authority & 2 Others
    [2015] eKLR
  • STAWU obo Members v South African Airways (Pty) Ltd and Others
    (JAS54/13) (2014)
Jurisdiction invoked
Original constitutional jurisdiction of the High Court (Employment and Labour Relations Court) under the Constitution; judgment delivered pursuant to Article 159(2)(d) and Article 48 of the Constitution

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, "William Ndegwa Githungo v Public Service Commission & 3 others [2022] KEELRC 864 (KLR)", Case Analysis (2022). Petition No E045 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/864/eng@2022-02-08

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