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ELRCPartially AllowedPetition No E083 of 2022· [2024] KEELRC 1984 (KLR)

Gicheha v Nairobi Water and Sewerage Co. Ltd (Petition E083 of 2022) [2024] KEELRC 1984 (KLR)

Employment and Labour Relations Court (implied; the judgment does not name the court on its face)
30 July 2024
8,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, an engineer seconded to the Respondent in 2005, acted as Operations and Maintenance Manager from January 2012 to December 2016 (without acting allowance until February 2022) and as Acting Regional Manager Informal Settlement Region from 8th March 2018 without a defined duration. When the Respondent internally advertised the Regional Manager position in January 2021 and re-advertised it in November 2021 with a Masters Degree requirement, the Petitioner applied but was not shortlisted, and his internal queries went unanswered. He petitioned for declarations on equal remuneration, constructive confirmation and legitimate expectation, special damages of Kshs.117,500/= per month, general damages, a permanent injunction and certiorari to quash the advertisements. The court framed six issues. It held the petition failed the Anarita Karimi Njeru precision threshold, though it proceeded on the merits. It found the Respondent, wholly owned by Nairobi City County, to be a public entity and State Corporation bound by the Attorney General's advisory and PSC circulars; its HR Manual was irregular for lack of Board of Directors and PSC approval, though past actions under it were deemed valid. The indefinite acting appointment violated the Petitioner's right to fair labour practices under Article 41, attracting compensation of Kshs.500,000/= following the Mbutura precedent. However, constructive confirmation, legitimate expectation, full remuneration, discrimination and the injunction claims all failed. Certiorari issued quashing the January 2021 and November 2021 advertisements for the position. Judgment was entered for the Petitioner with costs. Delivered virtually at Nairobi on 30th July 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the Petition met the Anarita Karimi Njeru precision threshold

Holding

It did not; the constitutional provisions were reproduced but the manner and extent of violation were not pleaded with precision

Reasoning

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.

p. 8
02

Whether the Respondent is a public entity

Holding

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

Reasoning

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.

p. 9
03

Regularity of the Respondent's HR Manual

Holding

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

Reasoning

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.

p. 11
04

Whether the over-four-year acting appointment violated Article 41

Holding

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

Reasoning

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.

p. 12
05

Whether the Petitioner was discriminated by the Masters Degree requirement

Holding

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

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.Declaration that the Respondent violated the Petitioner's right to fair labour practices
  2. 2.Compensation in the sum of Kshs.500,000/= under Article 23(3)(e) of the Constitution
  3. 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. 4.Costs of the Petition to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(4), 3(1), 10, 22, 23(3)(e), 27(1), 27(4), 35(1), 41, 47, 156(4)(a), 227, 232(1)(g), 234, 252(1), 260
  • Interpretation and General Provisions ActSection 3(1)
  • Public Service Commission ActSections 2, 3, 34, 36
  • State Corporations ActSection 2(b)(v)
  • Employment Act, 2007Sections 5(3), 5(5), 90
  • Water ActNot specified (authority for incorporation of the Respondent)
  • Office of Attorney General Act, 2012Section 5(1)
  • Access to Information Act, 2016Not specified
  • Public Procurement and Asset Disposal ActNot specified
  • Public Officer Ethics ActNot specified
  • Integrity ActNot specified
  • Public Finance Management ActNot specified
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Public Service Commission Circular Ref: PSC/ADM/13/(6) dated 11th March, 2020Review of Requirements for Promotion of Senior Officers in the Civil Service

Cases cited (25)

  • Susan Khakasa Oyatshi V Judicial Service Commission (2022) eKLR
  • Edah Cherono Maiywa V University of Nairobi Enterprises & Services Ltd Cause No. 273 of 2019
  • Kenya Shoe and Leather Workers Union V Slapper Shoe Industries (2015) eKLR
  • Silas Kaumbuthu Mbutura V Meru Central Dairy Co-operative Union Ltd (2015) eKLR
  • Anarita Karimi Njeru V Republic (No. 1) (1979) eKLR
  • Leonard Otieno V Airtel Kenya Ltd (2018) eKLR
  • Kenya Plantation and Agricultural Workers Union V James Finlay (K) Ltd (2013) eKLR
  • Geofirey Mworia V Water Resources Management Authority & 2 others (2015) eKLR
  • Communication Commission of Kenya & 5 others V Royal Media Services & 5 others (2014) eKLR
  • Teresa Carlo Omondi V Transparency International Kenya (2017) eKLR
  • Wakim Soda Ltd V Sammy Anitos (2017) eKLR
  • Total Kenya Ltd V Janevams Ltd (2015) eKLR
  • Capital Fish Ltd V Kenya Power & Lighting Co. Ltd (2016) eKLR
  • Manyinsa V Lavington Security Ltd (2023) eKLR
  • Kiambu County Tenants Welfare Association V Attorney General & another (2017) eKLR
  • Mumo Matemu V Trusted Society of Human Rights Alliance (2014) eKLR
  • Mumo V Republic & another (2004) 1 KLR 637
    (2004) 1 KLR 637
  • Maurice Omondi Odumbe V Kenya Cricket Association & 2 others Misc. App No. 1732 of 2004
  • Githunguri Dairy Farmers Co-operative Society Ltd V Attorney General & 2 others (2016) eKLR
  • Manyara Muchui Anthony V Commission Authority of Kenya & 3 others (2022) eKLR
  • Fredrick Otieno Outa V Jared Odoyo Okello & 4 others (2014) eKLR
  • Kenya Union of Domestic, Hotels, Education and Allied Workers (KUDHEIHA) V Salaries and Remuneration Commission (2014) eKLR
  • Peter K. Waweru V Republic (2006) KLR
    (2006) KLR
  • Nyarangi & others V Attorney General (2008) KLR 688
    (2008) KLR 688
  • South African Veterinary Council V Szymanski (2003) (4) (S.A) 42 (SCA)
    (2003) (4) (S.A) 42
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.