Wafula v Public Service Commission & 6 others (Employment and Labour Relations Petition E218 of 2023) [2023] KEELRC 3225 (KLR)
The bottom line
#Kenya's Employment Court confirmed the Public Service Commission could recall an unperfected job appointment, but a citizen had the right to challenge it.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the petitioner
The petitioner had standing to sue in his own interest and in the public interest under Article 258
The office of Chief Land Registrar is a public office established by statute and recruitment to it engages the constitutional powers of the Public Service Commission under Article 234. The petition was filed in the public interest under Article 258; the petitioner described himself as a private citizen and user of the Ministry's services bringing the petition on his own behalf and that of the public. The Court held he was entitled to act in both capacities.
Whether a prima facie case was established for interim orders
No prima facie case was established; the recall of the appointment was potentially lawful and the office had been filled
The Commission's letter appointing Mburu was expressly subject to a Presidential circular and a requirement to declare any vacancy within six months, showing the Commission had not finally exhausted its appointment power. The decision was therefore floating and recallable before it crystallised, and no constitutional, statutory or regulatory fetter on the Commission's discretion was shown to have been breached. Interference in the employer's prerogative was not justified.
Legal principles established
#- Courts intervene only sparingly in an employer's human resource prerogatives such as recruitment and appointment, and only on demonstrated unconstitutionality, breach of agreement or manifest unfairness
- An appointment not yet perfected by issuance of an offer remains a floating decision capable of recall by the appointing authority
- Every person has standing under Article 258(1) to institute proceedings claiming constitutional contravention, and may act in the public interest under Article 258(2)(c)
Court orders
#- 1.Pending the hearing and determination of the petition, the 1st respondent may avail the letter by the National Intelligence Service said to be dated September 29, 2021 which triggered the recall, within such safeguards as the Court may direct
- 2.The parties to consider compromising the petition or taking directions for expeditious hearing of the petition
- 3.Costs of the application in the cause
- Jurisdiction invoked
- Articles 3, 10, 22, 23(3)(c), 50, 159 and 162(2) of the Constitution of Kenya 2010, section 12 of the Employment and Labour Relations Court Act, 2011 and rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Public Service Commission & 6 others (Employment and Labour Relations Petition E218 of 2023) [2023] KEELRC 3225 (KLR)", Case Analysis (2023). Petitioner's notice of motion dated 24.11.2023 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3225/eng@2023-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.