Nyongesa v Masinde Muliro University of Science and Technology & 2 others; Muhehe & 5 others (Interested Parties) (Petition E005 of 2021) [2023] KEELRC 192 (KLR)
The bottom line
#Kenya's Employment Court confirmed a lecturer's rejection for promotion was lawful because he missed a clear job requirement, and being treated differently isn't automatically discrimination.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's non-promotion to Senior Lecturer Grade XIII was discriminatory
Non-promotion was justified on a disclosed, inherent job requirement - failure to supervise three postgraduate students to completion - and therefore not discrimination
The advert required candidates to have supervised at least three postgraduate students to completion. The petitioner's regret letter and the dismissal of his appeal cited this exact ground, which he admitted. Section 5(4)(b) of the Employment Act provides that it is not discrimination to prefer a person on the basis of an inherent requirement of a job. The employer discharged its burden of proving no discrimination under section 5(7).
Whether the promotion of the 1st Interested Party (holder of a masters degree) to Grade 13 discriminated against the petitioner
No comparison was possible because the 1st Interested Party was non-teaching staff employed under a different advert with different job requirements
The respondents produced evidence that the 1st Interested Party was employed under the non-teaching staff category, not the academic advert the petitioner applied to. The court held that non-comparable positions with different job requirements cannot ground a discrimination claim, applying section 5(4)(a) of the Employment Act.
Whether the promotions of the 2nd to 6th Interested Parties were meritorious and constitutionally compliant
The petitioner's allegations about the Interested Parties' PhD specialisations were false; the court found no credible evidence against their promotions
The court examined the Interested Parties' PhD certificates and found none were in disaster management and humanitarian assistance as the petitioner alleged, destroying the credibility of the petition. The Interested Parties had not applied for the position the petitioner sought, so they were not in the same comparison pool. Allegations of malpractice in promotions require strict proof, and allegations of corruption and nepotism were made without evidence.
Whether Articles 10, 27, 73 and 232 of the Constitution were violated in the appointments
No violation proved; the petitioner failed to meet the promotion requirements and produced no evidence of constitutional violations
The court found the petitioner did not meet the disclosed requirements for promotion, which was a legitimate basis for rejection. No evidence disclosed violation of Article 73. Claims of nepotism and corruption were unsupported. The court applied the Mwau authority on the burden of establishing Article 27 violations and declined to interfere with internal employer management absent gross violation of the law.
Legal principles established
#- A person alleging violation of Article 27 of the Constitution must establish that because of the distinction made, the claimant was denied equal protection or benefit of the law; different treatment per se does not amount to discrimination
- Courts will not interfere with an employer's promotion decisions unless there is evidence of gross violations of the law and evident discrimination
- Under section 5(4)(b) of the Employment Act, distinguishing, excluding or preferring a person on the basis of an inherent requirement of a job is not discrimination
Court orders
#- 1.The Petition dated 29th September 2021 and amended on 23rd February 2022 is dismissed in its entirety
- 2.Costs of the petition awarded to the 1st Respondent and all the interested parties
- 3.Stay of 30 days
- Jurisdiction invoked
- Articles 10, 27, 73 and 232 of the Constitution of Kenya, 2010 (petition alleging violation of constitutional values and principles in appointments and promotions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Masinde Muliro University of Science and Technology & 2 others; Muhehe & 5 others (Interested Parties) (Petition E005 of 2021) [2023] KEELRC 192 (KLR)", Case Analysis (2023). Petition dated 29th September 2021, amended 23rd February 2022 (ELRC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/192/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.