Gor & another v Principal Secretary/Interior and Citizen Services & 4 others (Employment and Labour Relations Petition E204 of 2021) [2024] KEELRC 242 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to the recruitment of extra Assistant County Commissioners, ruling the appointments were lawful and the petition poorly pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appointment of the Assistant County Commissioners/Assistant Secretary was pursuant to a process that was unconstitutional and unlawful
- 2.Whether the appointed Assistant County Commissioners/Assistant Secretary ought to have been enjoined in this petition
- 3.Whether the Respondents contravened the provisions of the Constitution and other laws and whether the Petitioners have proved such violations
Key legal issues
#Whether the recruitment and appointment of Assistant County Commissioners exceeded the 450 advertised posts unconstitutionally
The process was lawful; the additional 150 recruits were drawn from the qualified applicant pool on a need basis under section 33(1) of the Public Service Commission Act and Article 234(2)(a)(ii), consistent with Article 232 values
The court found the advertisement was placed and not challenged by the Petitioners. The Respondents demonstrated that the extra recruits were appointed from the existing database of qualified applicants on need basis, avoiding the cost of a fresh recruitment, and that their payment was factored into the budget. This fell within the Commission's statutory powers and the public service values of efficient, effective and economic use of resources.
Whether the appointed officers ought to have been enjoined
Yes; any adverse decision would terminate their employment without them being heard
The appointed officers had been deployed and were serving in various stations. Allowing the petition would terminate their employment, an effect the court found monumentally prejudicial, and it adopted the reasoning in Sheria Mtaani that proceedings with such an effect should not proceed to conclusion without involving those persons.
Whether the Petitioners proved violations of the Constitution
No; the petition was not pleaded with the requisite precision and no prima facie case was established
Although public interest litigation was open to the Petitioners, they failed to demonstrate with precision the provisions violated and how the infringements adversely affected the public at large. The budgetary concern was answered by the Respondents' explanation of need and funding. The court applied the Mumo Matemu precision standard and dismissed the petition.
Legal principles established
#- Constitutional petitions must be pleaded with precision, providing adequate particulars of the alleged violations (Anarita Karimi Njeru standard)
- Persons who would be directly and prejudicially affected by the outcome of a petition challenging their employment must be enjoined as parties
- Public interest litigants must show how the alleged infringements adversely affected the public at large
- Filling additional vacancies from a pool of previously qualified applicants on a need basis, saving the cost of a fresh recruitment, accords with the values and principles of public service under Article 232
Court orders
#- 1.The Petition is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) as read with Article 165(5)(b) and 41(1) of the Constitution (Employment and Labour Relations Act) - invoked by the Petitioners and not disturbed by the court
Relief refused
#Declarations that the Respondents acted unconstitutionally, illegally and ultra vires in appointing more Assistant County Commissioners than advertised
Petitioners did not challenge the advertisement nor the need-basis recruitment of the additional 150 recruits; no prima facie case established
Order quashing the letter Ref.No.MICNG.SEC.5.9 of 15th September, 2021 and the attached list
The appointments, including the additional cadets, were held to have been done legally and lawfully
Order directing fresh re-advertisement and appointment of Assistant County Commissioners
Petition failed; recruitment process held to be lawful
Declaration that the 1st Respondent is unfit to hold public office
No violation proved with the precision required in constitutional petitions
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This leads to the Conclusion that the Petitioners have not established a prima facie case against the Respondents with the consequence that the petition is found unmerited and is hereby dismissed with not order as to costs.
the appointment most specifically of the additional cadets was done legally and lawfully.
Whereas I agree that the Petitioners could bring this Petition as public interest litigation, the Petitioners needed to show how the alleged infringements adversely afiected the public at large.
In proceedings that would have such an efiect on a person, it would not be proper for them to be proceeded with and concluded, without involving that person[s]
Issues in the judgment
#Conflicting figures on the number of recruits: the Petitioners pleaded 450 advertised versus 636 appointed, while the Respondents pleaded 709 appointed across the financial years, and the court found only 150 additional recruits
The numbered issues in paragraph 31 are typographically garbled, with overlapping labels ('Aa. aa.') before the final third issue
Costs order contains a typographical error: 'with not order as to costs' instead of 'no order as to costs'
The 4th Respondent is referenced in the Petitioners' further affidavit but the reliefs and determinations concern the 1st, 2nd, 3rd and 5th Respondents; the Respondents are not individually named in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gor & another v Principal Secretary/Interior and Citizen Services & 4 others (Employment and Labour Relations Petition E204 of 2021) [2024] KEELRC 242 (KLR)", Case Analysis (2024). Petition dated 10th December, 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/242/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.