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ELRCPartially AllowedPetition dated 25.04.2023 (E&LRC, Nairobi)· [2024] KEELRC 927 (KLR)

Mukui v Kenya Airports Authority (Petition E078 of 2023) [2024] KEELRC 927 (KLR)

Employment and Labour Relations Court
8 April 2024
BOByram Ongaya
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan engineer's multi-million shilling claim over a prolonged acting appointment failed because both employer and employee ignored the six-month statutory cap on acting tenure.

What this practically means

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Executive summary

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The petitioner, a registered engineer employed by the respondent since 2007, was appointed on 10.05.2018 to act as Manager, Airport Development and Contract for 147 days, relieving the substantive holder. The acting appointment lapsed on 13.11.2018 but he continued acting; an extension letter of 01.10.2019 purportedly extended the acting period until the post was filled substantively. He sought declarations of violation of Articles 28, 41(2)(a)&(b) and 47 of the Constitution, breach of section 5(5) of the Employment Act, section 34(3) of the Public Service Commission Act and HR Manual clauses, retrospective confirmation as Manager effective November 2018, Kshs. 3,033,504.40 underpayment plus interest, compensation, a certificate of service and costs. The respondent denied violations, attributing the delay to Covid-19 protocols and the petitioner's own refusal to attend a scheduled interview, conceding only an airtime allowance differential. The court held that the acting tenure could not lawfully exceed six months under section 34 of the Public Service Commission Act, 2017; the purported extension was unlawful; the petitioner had no legitimate expectation of retrospective confirmation; and his declining the interview amounted to a failure to mitigate. Distinguishing Oyatsi v Judicial Service Commission, the court found no constitutional violation and held that reliefs could not be founded on unlawful conduct of the parties. Only the certificate of service was granted, deliverable within 30 days, with each party bearing its own costs.

Key legal issues

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01

Whether the petitioner established violation of his constitutional rights under Articles 28, 41(2)(a)&(b) and 47

Holding

Petition on violations fails; the acting appointment lapsed after 147 days and any extension was itself unlawful under the six-month statutory cap.

Reasoning

The acting appointment lapsed when the 147 days expired and no valid extension issued; the letter of 01.10.2019 extending the acting period was contrary to section 34 of the PSC Act, 2017. The Court will not award reliefs founded on parties' breach of the statutory tenure provisions, and the petitioner declined the opportunity to be substantively appointed by skipping the interview.

p. 5
02

Whether the petitioner was entitled to retrospective confirmation as Manager Airport Development and Contract

Holding

No; there was no contractual or statutory basis for a legitimate expectation of retrospective confirmation.

Reasoning

The petitioner was invited to an interview to fill the post substantively but declined citing proximity to retirement. Nothing stopped the respondent from appointing him retrospectively had he attended the interview. His own conduct, not the respondent's failure, produced the impugned situation.

p. 5
03

Whether the petitioner's failure to revert to his substantive position affects the claim

Holding

Yes; the petitioner failed to mitigate and cannot benefit from the unlawful prolonged acting tenure.

Reasoning

The Court held that the petitioner should have reverted to his substantive position when the 147-day acting appointment, or the maximum six-month tenure, lapsed. The Court declines to aid the parties' unexplained failure to comply with policy and statutory provisions on acting tenure.

p. 5
04

Reliefs

Holding

All remedies collapse except delivery of a certificate of service.

Reasoning

The respondent participated in the failure to implement the statutory and policy provisions on acting tenure, so the only relief warranted is a certificate of service, within 30 days, with each party bearing own costs.

p. 5

Legal principles established

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  • An acting appointment cannot exceed the statutory maximum acting tenure of six months fixed under section 34 of the Public Service Commission Act, 2017.
  • A party cannot found a cause of action or claim constitutional violation on an appointment that contravenes express statutory and policy provisions.
  • An employee who declines an interview for the substantive position fails to mitigate and cannot blame the employer for the ensuing position.

Court orders

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  1. 1.Each party to bear own costs of the petition
  2. 2.The respondent to deliver the certificate of service within 30 days from today

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 41(2)(a) & (b), 47
  • Employment ActSection 5(5)
  • Public Service Commission ActSection 34 (and s.34(3) as pleaded); 2017
  • Respondent's Human Resource Manual 2011Clauses E.11(2), E.12, E.12(2), G.4(5), F.6, F.6(4), D.19

Cases cited (1)

  • Oyatsi –Versus- Judicial Service Commission
    Petition E111 of 2021 [2022] KEELRC 3 (KLR)
Jurisdiction invoked
Article 28, 41(2)(a) & (b) and 47 of the Constitution of Kenya, 2010; Employment Act; Public Service Commission Act, 2017

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, "Mukui v Kenya Airports Authority (Petition E078 of 2023) [2024] KEELRC 927 (KLR)", Case Analysis (2024). Petition dated 25.04.2023 (E&LRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/927/eng@2024-04-08

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