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ELRCDismissedPetition (ELRC), Mombasa· [2023] KEELRC 3465 (KLR)

Wangari v Kenya Ports Authority & 2 others; Ogutu & 3 others (Interested Parties) (Petition E005 of 2022) [2023] KEELRC 3465 (KLR)

Employment and Labour Relations Court
13 July 2023
4,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that renewing a public officer's contract does not require fresh competitive recruitment, and dismissed the challenge with costs.

What this practically means

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Executive summary

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The petitioner, an Employees Relations Manager at Kenya Ports Authority (KPA), petitioned challenging the renewal/appointment process for the office of General Manager, Human Resource and Administration. She sought declarations that the process contravened Articles 10, 27(8) and 232 of the Constitution, and prohibitions against the 1st interested party assuming the office and against KPA filling offices without competitive recruitment. She alleged the 1st interested party was appointed without competition, that a 5-year renewal breached the HR Policy, that the office had only been held by men, and cited various competence and integrity concerns including handling of a sexual harassment complaint, capping of overtime, and industrial relations failures. KPA responded that the 1st interested party was competitively recruited in 2018 through an external firm for a 3-year renewable contract, applied for renewal in September 2021, and the full board on 18 February 2022 approved a 3-year renewal issued by letter dated 21 February 2022. The Public Service Commission supported the renewal under Section 45(3) of the PSC Act. The court framed three issues and held that where a contract allows renewal and conditions are met, no fresh competitive recruitment is required; re-appointment differs from fresh recruitment and requires only performance appraisal. The gender history of the office was noted as an invitation to introspection under Article 232(1)(j), and the employer was reminded of its duty under Sections 6(2)-(4) of the Employment Act to issue a sexual harassment policy. The petition was dismissed with costs to the 1st respondent, 1st and 3rd interested parties.

Key legal issues

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01

Whether the position of GM Human Resources required fresh competitive recruitment upon renewal

Holding

No; renewal/re-appointment of an officer competitively recruited for the first term does not require a fresh competitive process

Reasoning

The court found the 1st interested party was competitively recruited in 2018 through an external firm for a 3-year renewable contract. Section 45(3) of the PSC Act allows renewal where there is workload, satisfactory performance and a written request, with no officer disadvantaged. Authority of the Court of Appeal holds that in re-appointment, competitive recruitment does not arise; only performance appraisal is required. The full board approved the renewal for 3 years before expiry.

p. 8
02

Whether gender composition of the office violated Articles 10, 27(8) and 232

Holding

The history of male-only occupation of the office is a matter for introspection and Article 232 compliance but no relief was granted on it

Reasoning

The court noted the office had only been occupied by men but said this must be viewed in context of the respondent's other offices and ranks. It framed it as an invitation to the 1st respondent to comply with Article 232(1)(j) on equal opportunities for men and women, the members of all ethnic groups and persons with disabilities, rather than a basis for the orders sought.

p. 8
03

Whether allegations of incompetence, sexual harassment handling, overtime capping and industrial relations failures warranted relief

Holding

No; such internal matters lack proof and should be addressed through internal channels and the trade union

Reasoning

The court found the petitioner's allegations unsupported by evidence and observed she, as public relations officer, should pursue internal channels. It warned against the court entering the shop floor to make administrative decisions belonging to the union and employer, noting pending suits by the Dock Workers Union. It nonetheless directed attention to the employer's statutory duty on sexual harassment policy.

p. 8

Legal principles established

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  • Where an employment contract allows for renewal and its conditions are met, an employer may renew without fresh recruitment
  • Re-appointment is subject to Article 232(1)(g) fair competition and merit but does not require fresh competitive recruitment
  • An employer with twenty or more employees must issue a sexual harassment policy under Section 6(2) of the Employment Act

Court orders

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  1. 1.The petition is dismissed
  2. 2.The petitioner shall meet the costs due to the 1st respondent, 1st and 3rd interested parties
  3. 3.The attention of the 1st respondent is drawn to Sections 6(2) to (4) of the Employment Act on sexual harassment policy

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1) and (2), 20(8), 27(8), 41, 59, 155, 156, 233, 234(1), 234(f), 232(1)(g), 232(1)(j), 232(2)
  • Employment Act, 2007Sections 6(2)-(4), 11, 12, 13
  • Kenya Ports Authority ActSections 8(1), 10, 11, 12, 13
  • State Corporations ActSection 51(1) and (3)
  • Public Service Commission Act (PSC Act)Section 45(3)

Cases cited (5)

  • KUDHEIHA v Salaries and Remuneration Commission
    [2014] eKLR
  • Republic v Cabinet Secretary for Education, Science & Technology & 3 others
    HC JR No. 280 of 2013 [2014] eKLR
  • William Ateka Ogato v Kisii University & 2 others
    [2021] eKLR
  • Wilfrida Itolondo & 4 others v The President & others
    [2015] eKLR
  • Wilfrida Arnodah Itolondo v Attorney General & 3 others
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the petition; respondent offices established under Articles 155 and 156 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wangari v Kenya Ports Authority & 2 others; Ogutu & 3 others (Interested Parties) (Petition E005 of 2022) [2023] KEELRC 3465 (KLR)", Case Analysis (2023). Petition (ELRC), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3465/eng@2023-07-13

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