Gicheha v Nairobi Water and Sewerage Co. Ltd (Petition E083 of 2022) [2024] KEELRC 1984 (KLR)
The bottom line
#Kenya's employment court ruled that keeping a worker in an acting role indefinitely is unfair, awarding KShs. 500,000 and quashing the job advertisements.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the Anarita Karimi Njeru precision threshold
It did not; the constitutional provisions were reproduced but the manner and extent of violation were not pleaded with precision
The court reiterated the Anarita Karimi Njeru standard as re-emphasised in Kiambu County Tenants Welfare Association and Mumo Matemu. Apart from reproducing Articles 3(1), 41 and 47 in Part F of the Petition, the Petitioner did not connect the provisions to specific factual allegations. The court found the issues raised did not require a constitutional petition and an ordinary claim would have sufficed.
Whether the Respondent is a public entity
Yes; it is a public entity and a State Corporation wholly owned by Nairobi City County, subject to the Constitution, public service laws and PSC circulars
Relying on the Attorney General's advisory, Article 260, the Interpretation and General Provisions Act, Githunguri Dairy and the Public Service Commission Act, the court held that a county government cannot incorporate a private entity to perform its functions; employees of the Respondent serve in the public service as public officers.
Regularity of the Respondent's HR Manual
The HR Manual on record was irregular, lacking evidence of Board of Directors approval or approval by SCAC or PSC, though past actions under it were deemed valid
The manual lacked an effective date, board resolution or approval by SCAC or PSC; approval at Board of Management level under the Managing Director was only initial. Actions taken in good faith under it were deemed valid but remain subject to judicial scrutiny.
Whether the over-four-year acting appointment violated Article 41
Yes; the indefinite acting, without the appointing authority making any determination of duration or any attempt to fill the post, was an unfair labour practice
Clause 6.3 allowed acting for a maximum of 6 months 'or as determined by the appointing authority', but no determination was made. The court applied Silas Kaumbuthu Mbutura and awarded compensation of Kshs.500,000/= under Article 23(3)(e), calibrated against the 18-year acting in that case.
Whether the Petitioner was discriminated by the Masters Degree requirement
No discrimination found; the Petitioner applied knowing he lacked the advertised qualification, but the Respondent failed to prove the basis for the Masters Degree requirement, which was therefore quashed with the advertisements
The court applied the Peter K. Waweru definition of discrimination and found no differential treatment proved. However, the Respondent produced no competency framework or career guidelines supporting the Masters Degree requirement and had paid acting (not special duty) allowance, showing it considered the Petitioner qualified; the advertisements were therefore quashed.
Legal principles established
#- A party that seeks and receives an advisory opinion of the Attorney General, its principal legal adviser, is bound by it unless it is challenged and set aside in court
- A water company wholly owned by a county government, incorporated under the Water Act and performing public functions, is a public entity and a State Corporation subject to the public service regulatory framework
- Human resource instruments of state corporations, including HR manuals and career guidelines, are board documents ineffectual unless approved by the Board of Directors
- Retaining an employee in an acting position for an undefined period without attempting to fill the position substantively after the prescribed maximum is an unfair labour practice under Article 41
- An acting appointment is neither a promotion nor a promise of confirmation, and the law does not recognise constructive confirmation in the public service
- Refusal to avail a competency framework requested formally by an employee violates the right of access to information under Article 35(1)
Court orders
#- 1.Declaration that the Respondent violated the Petitioner's right to fair labour practices
- 2.Compensation in the sum of Kshs.500,000/= under Article 23(3)(e) of the Constitution
- 3.Certiorari quashing the Respondent's advertisement and re-advertisement for the position of Regional Manager Informal Settlement Region dated 14th January, 2021 and 17th November, 2021, to the extent they relate to that position
- 4.Costs of the Petition to the Petitioner
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition under Articles 3(1), 41, 47 among others; invoked powers under Article 23(3) for remedies)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndunda v Kerio Valley Development Authority (Cause E021 of 2024) [2025] KEELRC 2708 (KLR)[2025] KEELRC 2708 (KLR)3 Oct 2025
- Ndalut & another v Nairobi City Water & Sewerage Company Ltd (Employment and Labour Relations Petition E099 of 2022) [2025] KEELRC 425 (KLR)[2025] KEELRC 425 (KLR)14 Feb 2025followed
Cite this brief
#Cite this brief
Caselaw, "Gicheha v Nairobi Water and Sewerage Co. Ltd (Petition E083 of 2022) [2024] KEELRC 1984 (KLR)", Case Analysis (2024). Petition No E083 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1984/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.