Wafula v Kenya National Commission for Unesco & another; Cabinet Secretary, Ministry of Education & 4 others (Interested Parties) (Petition E167 of 2022) [2023] KEELRC 1100 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to a state recruitment, ruling that courts won't stop hiring based on speculation or when investigations are already underway.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction to grant judicial review orders in a constitutional petition
The ELRC has jurisdiction over claims of violation of fundamental rights in employment matters and may grant the reliefs under Article 23, including judicial review orders.
Article 165(5) excludes from the High Court's jurisdiction matters falling within the courts contemplated in Article 162(2). The Court of Appeal's decision in Daniel W. Mugendi v Kenyatta University confirmed the Industrial Court can entertain composite claims of rights violation and breach of employment contract. Rule 28 of the Court's procedure rules expressly allows judicial review applications. The court therefore rejected the respondents' jurisdictional objection.
Whether the 2nd recruitment for 22 positions violated Articles 10, 232 and related constitutional provisions
No violation was established; the recruitment was approved by the National Treasury, advertised nationally, and based on approved HR instruments.
The 2nd Respondent gave detailed, unrebuted evidence of Board resolutions, National Treasury approval obtained by letter of 25th August 2022, and a nationwide newspaper advertisement. The Petitioner failed to rebut this evidence, produced no minutes supporting the alleged cession of recruitment to the PSC, and admitted he could still challenge the process later if flaws emerged.
Whether constitutional avoidance bars the petition
Constitutional avoidance applies; the grievances regarding the 1st recruitment were already before investigative agencies and other courts.
The illegalities alleged concern the 1st recruitment of 19 employees, against which no relief was sought. Those matters were reported to the EACC, Inspectorate of State Corporations and other agencies, which were still investigating. The 6th Interested Party's grievance was already the subject of ELRC Petition No. 82 of 2020 pending appeal. The court declined to usurp the Board's or the agencies' functions.
Credibility and bona fides of the petition
The Petitioner appeared a surrogate petitioner fed information by the 5th Interested Party, and the allegations were an afterthought.
Under cross-examination the Petitioner admitted the letters underlying the petition were given to him by the 5th Interested Party, that he had no relationship with the 1st Respondent, and no minutes supported the alleged PSC delegation. The 5th Interested Party, as former Chairman, had authority to raise his allegations while in office and did not.
Legal principles established
#- The ELRC has jurisdiction to entertain and determine claims of violation of fundamental rights under Articles 22 and 23 in employment and labour relations matters, and to grant judicial review orders within such claims.
- Courts should not intervene too readily in the exercise of management's discretion in recruitment matters.
- A threat of constitutional violation must be actual, not based on speculation or fear.
- Constitutional litigation is a narrow path to be travelled only in exceptional situations where alternative remedies are unavailable.
Court orders
#- 1.The petition is dismissed.
- 2.The recruitment to fill the 22 advertised vacant positions is to continue.
- Jurisdiction invoked
- Articles 22, 23, 162 and 165(5) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Kenya National Commission for Unesco & another; Cabinet Secretary, Ministry of Education & 4 others (Interested Parties) (Petition E167 of 2022) [2023] KEELRC 1100 (KLR)", Case Analysis (2023). Petition dated 18th September 2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1100/eng@2023-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.