Kibere v Nairobi City Water & Sewerage Company Ltd (Petition E178 of 2022) [2023] KEELRC 1899 (KLR)

Employment and Labour Relations Court

27 July 2023

LNLINNET NDOLO

1,497 words in judgment

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The bottom line

Kenya's Employment Court dismissed a manager's claim that acting in a role for 20 months guaranteed her the job — employer policies controlled everything.

What this practically means

Executive summary

The Petitioner, employed since 1999 and serving as Meter Reading and Billing Coordinator, was appointed Acting Regional Manager, North Eastern Region, and served in that capacity for 1 year and 8 months against a policy limit of 3 to 6 months under Clauses 5.3 and 5.4 of the Respondent's Human Resource Policies. She claimed a legitimate expectation of confirmation, alleged unequal remuneration amounting to Kshs 61,373,921 in arrears, constructive confirmation, an unlawful demotion to Monitoring Coordinator, and violation of her rights to fair labour practices, human dignity, freedom from servitude and access to information. She sought declarations, general damages, a permanent injunction against victimisation, costs and interest. The Respondent, through its HR Manager Titus Tuitoek, explained that following a court order reinstating Eng. Stephen Mbugua as Director-Commercial Services, Rachel Ng'ethe reverted to Regional Manager and was deployed to the North Eastern Region, necessitating the Petitioner's reversion to her substantive position; it denied any guarantee of confirmation, which would have required competitive recruitment under Clause 4.2.3. The court applied the Supreme Court's legitimate expectation principles and held there was nothing wrong with the deployment actions and that Clause 6.3 of the Human Resource Manual permitted the extended acting period. The Petition was dismissed in its entirety with each party bearing their own costs.

Key legal issues

Whether the Petitioner had a legitimate expectation of confirmation as Regional Manager

Holding

The Petition fails; no legitimate expectation arose justifying confirmation

Reasoning

The court applied the Supreme Court's principles on legitimate expectation: an express, clear and unambiguous promise, reasonableness, competence and lawfulness of the representation, and consistency with law. Confirmation to the Regional Manager position would have been subject to competitive recruitment under Clause 4.2.3 of the Human Resource Manual, so acting in the post created no entitlement to confirmation.

p. 4

Whether the extended acting period and subsequent reversion were unlawful

Holding

They were lawful; Clause 6.3 allowed the extended acting period and the reversion followed a court order reinstating Eng. Stephen Mbugua

Reasoning

Rachel Ng'ethe, who was acting as Director-Commercial Services, reverted to Regional Manager and was deployed to the North Eastern Region, with the ripple effect of the Petitioner reverting to her substantive position of Meter Reading and Billing Coordinator. The court held the deployment actions were not wrongful and the extended acting period was permitted by Clause 6.3 of the Human Resource Manual.

p. 4

Legal principles established

Legitimate expectation requires an express, clear and unambiguous promise by a public authority; there can be no legitimate expectation against clear provisions of the law
Where an employer's Human Resource Manual empowers the appointing authority to determine the acting period, an extended acting period is permissible

Court orders

1.Dismissal of the Petition in its entirety
2.Each party to bear their own costs

Authorities

Cases cited (3)

Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex Parte Soweto Residents Forum CBO
[2019] eKLR
Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
[2014] eKLR
Kenya Revenue Authority v Export Trading Company Limited
[2022] KESC 31 (KLR)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over the petition alleging violation of fair labour practices and constitutional rights in employment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kibere v Nairobi City Water & Sewerage Company Ltd (Petition E178 of 2022) [2023] KEELRC 1899 (KLR)", Case Analysis (2023). Petition dated 11th October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1899/eng@2023-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.