Kamwaro v Embu Water and Sanitation Co.Ltd (Constitutional Petition E008 of 2023) [2023] KEELRC 1213 (KLR)
The bottom line
#A Kenyan court allowed Embu Water's Managing Director recruitment to proceed, ruling that only shareholders count as company members and the 10-year experience requirement was valid.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a challenge to a job advertisement
The court has jurisdiction because the dispute relates to employment and seeks to protect employees from discriminatory recruitment
The court held the suit arose from a job advertisement for Managing Director and sought to protect qualified employees from discrimination. Article 162(2)(a) read with Article 165(5) contemplates this court as the proper forum for workplace constitutional violations. The absence of an employer-employee relationship between the parties did not oust jurisdiction since the grievance concerns the employment relationship of prospective/appointed employees.
Whether the petitioner was a member of the company bound by the arbitration clause in the Articles
No - members of a company are shareholders, and the petitioner holds no shares, so the arbitration clause did not apply
Relying on dictionary definitions of shareholder, the court found the petitioner was not a shareholder or member. It accordingly declined to follow the High Court decision in Elijah Wambugu Gakinya, which had held that residents of a county are members of a water company whose grievances must go to arbitration under the Articles of Association.
Whether the impugned job advertisement was discriminatory for requiring 10 years' work experience
No - the registered and valid Articles of Association (2015), Article 76, require 10 years' experience, so the advert was in harmony with them
The petitioner's version of the amended Articles had no company stamp, no company secretary's endorsement, no evidence of registration, and the minutes lacked the chairman's signature. The respondent produced stamped Articles, a resolution signed by the company secretary, chairman and Managing Director, annual returns and official receipts from the Registrar-General. The court found the respondent's version valid and the advert compliant, subject to further evidence at the hearing.
Whether conservatory orders were merited
No - no prima facie case or real prejudice was shown, and public interest favoured allowing the recruitment to proceed
Applying the Wilson Kaberia Nkunja threshold, the court found the advert lawful under Article 76 of the registered Articles, so no rights would suffer prejudice without the order. Public interest lay in not interfering with a recruitment conducted per the Articles and in filling the Managing Director vacancy vacant since December 2021 with the best qualified candidate.
Legal principles established
#- The ELRC has jurisdiction over claims concerning recruitment to a company position where the dispute relates to employment and alleged discrimination against employees
- Any person may petition the court to protect the rights of an employee or a class of employees from discrimination in recruitment, under Article 22(1)
- Members of a company are shareholders; a mere resident of the county in which a water company operates is not a member bound to arbitrate under the Articles
- Threshold for conservatory orders: prima facie case with likelihood of success, real danger of prejudice/nugatory petition, and public interest
Court orders
#- 1.The respondent's preliminary objection dated 17th April 2023 is dismissed.
- 2.The petitioner's notice of motion dated 11th April 2023 is dismissed.
- 3.Each party to bear own costs.
- Jurisdiction invoked
- Article 162(2)(a) and Article 165(5) of the Constitution (ELRC jurisdiction); petition brought under Articles 3, 22(1), 23 and 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamwaro v Embu Water and Sanitation Co.Ltd (Constitutional Petition E008 of 2023) [2023] KEELRC 1213 (KLR)", Case Analysis (2023). Petitioner's Notice of Motion dated 11th April, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1213/eng@2023-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.