Bulemi v Lake Victoria North Water Works; Luvusi & another (Interested Parties) (Employment and Labour Relations Petition E006 of 2022) [2023] KEELRC 187 (KLR)

Applying the Makupa Transit Shade principle, a corporate body's affidavits may be deponed by a person with knowledge of the issues who states they were duly authorized. The burden then shifts to the challenger to prove lack of authority. The further affidavit filed without leave occasioned no prejudice since the petitioner addressed its contents in submissions and it raised no new issue beyond the minutes.

The grievance was the engagement of the interested parties in acting positions beyond six months contrary to section 34(1) of the Public Service Commission Act. Following Gabriel Mutava and Harrikisson, constitutional jurisdiction must not be misused as a substitute for ordinary employment procedures. No rights were pleaded with precision save the alleged unfair labour practice, and employees appointed to the substantive positions were not enjoined.

Section 34(3) of the Public Service Commission Act uses discretionary language permitting longer acting where reasonably explained. A ministry letter froze recruitment until further notice; once lifted, competitive recruitment occurred. Only the 2nd interested party applied and was ranked third. The alleged lack of master's degrees was hearsay and the qualifications applied to all candidates, so discrimination did not arise.

The petition was filed without notice to the respondent, no demand letter was produced, the interested parties had never complained to their employer, and the claim was on breach of a specific statutory provision dressed as a constitutional petition. The court therefore found it an abuse of court process and awarded costs to the respondent.