Mburu v Technical and Vocational Education and Training Authority; Public Service Commission & 2 others (Interested Parties) (Petition E187 of 2023) [2024] KEELRC 2680 (KLR)
The bottom line
#Kenya's Employment Court dismissed a public officer's claim to a TVETA job because his conduct showed he had effectively abandoned the appointment.
What this practically means
#Executive summary
#Key legal issues
#Effect of absence of formal secondment on an appointment to permanent and pensionable employment
The respondent was not entitled to refuse implementation of the appointment for want of formal secondment; secondment was not a precondition in the letter of 04.09.2018 and once the contract was concluded the position was duly filled with no vacancy
The Court found the letter of 04.09.2018 appointed the petitioner on permanent and pensionable terms without mentioning secondment as a condition. The petitioner was already performing duties for the respondent. Secondment merely regulated temporary absence from the parent service. The respondent misdirected itself in refusing to implement the appointment and in advertising and filling a position that was already filled.
Whether the petitioner waived the appointment of 04.09.2018
Yes. By accepting promotion by the interested parties, continuing to draw salary from the 2nd interested party, failing to notify his authorised officer of the appointment as required by section B.17(3) of the HR Manual, and taking up an alternate board member appointment, the petitioner waived the appointment and his claims are made in bad faith
The Court held the petitioner wanted to benefit both ways, which was impossible. He never notified the interested parties that the deployment had ended, accepted the promotion of 24.09.2018 with enhanced benefits, was appointed alternate board member of Coast Institute of Technology in 2021, and never assumed duties as appointed. The appointment therefore never took effect per its own commencement terms.
Whether the petitioner's constitutional rights were contravened
No. The petitioner failed to establish contravention or threatened contravention of the rights alleged; the respondent did not redeploy the petitioner and was not culpable or liable
The Court found the redeployment was effected by the 1st and 2nd interested parties, not the respondent. The respondent's only failing was non-implementation of an appointment that the petitioner himself never perfected. Claims of discrimination, denial of fair labour practice and infringement of Articles 28 and 29 failed, and the petition was characterised as an afterthought filed after a lapse of about five years.
Legal principles established
#- Where a letter of appointment to permanent and pensionable employment contains no precondition of formal secondment, the employment contract takes effect upon acceptance and assumption of duty, and the employer cannot refuse to implement it for want of secondment
- An employee who silently continues to serve and draw remuneration from the parent state department, accepts promotions and other appointments, and fails to perfect a new appointment, is deemed to have waived that appointment
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs of the proceedings
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and constitutional (bill of rights) claims arising from employment; Articles 10, 22, 25, 27, 28, 29, 40, 41, 43, 47 and 73 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Technical and Vocational Education and Training Authority; Public Service Commission & 2 others (Interested Parties) (Petition E187 of 2023) [2024] KEELRC 2680 (KLR)", Case Analysis (2024). Petition filed 02.10.2023 (Amended Petition dated 01.03.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2680/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.