Gicheha v Nairobi County Water & Sewerage Company Limited (Petition E083 of 2022) [2023] KEELRC 632 (KLR)
The bottom line
#A Kenyan court blocked Nairobi Water from filling a manager's job until it proves a Masters degree was genuinely required.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case
Yes - the applicant demonstrated prima facie that his rights had been or were likely to be violated through the January and November 2021 advertisements, particularly as the Respondent adduced no evidence to justify the Masters degree requirement.
The Respondent, a public entity, failed to avail career progression guidelines, competency framework or matrix to substantiate the Masters degree qualification, and gave no justification for appointing the applicant to act if unqualified. The applicant's contention that the position did not require a Masters degree, supported by the PSC Circular and the Attorney General's opinion, remained uncontroverted. An apparently infringed right calling for rebuttal satisfies the Mrao test.
Whether the applicant would suffer irreparable injury not compensable by damages
Yes - damages would not adequately vindicate the applicant's rights.
The court applied Halsbury's definition of irreparable injury as endorsed in Francis Muriithi Ndirangu v Ruth Wanjiku Nderitu. The applicant had served the Respondent since 2005 and acted in the position since 2018; employment and rise in positions of responsibility bring a sense of accomplishment and satisfaction that monetary compensation cannot restore. If the position was filled, it would not be available even if he won the petition.
Whether the balance of convenience favoured the applicant
Yes - the balance of convenience favoured the applicant.
If the order was not granted, the Respondent would fill the position and it would not be available if the applicant won the petition, whereas a grant would only delay recruitment briefly. The applicant had acted in the position since March 2018 with unchallenged performance, so further delay would not inconvenience the Respondent.
Legal principles established
#- The burden of proving that an employee was unqualified for a position lies on the employer
- A public entity's employees are public officers bound by the values and principles of public service under Article 232, including fair competition and merit as the basis of appointments
Court orders
#- 1.An interim order of injunction restraining the Respondent, its servants, agents and/or employees from conducting interviews and/or filling the position of Regional Manager In-charge of Informal Settlements Region pursuant to the Respondent's Internal advertisement dated 17th November, 2021 and circular dated 13th May, 2022 pending hearing and determination of the petition
- 2.Costs of the application to be in the petition
- Jurisdiction invoked
- Articles 20, 22, 23(3), 50(1), 159(2)(d), 165 and 258 of the Constitution of Kenya, 2010; Rules 18, 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheha v Nairobi County Water & Sewerage Company Limited (Petition E083 of 2022) [2023] KEELRC 632 (KLR)", Case Analysis (2023). Notice of Motion dated 24th May, 2022 (within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/632/eng@2023-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.