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ELRCPartially AllowedPetition (not specified in judgment; earlier referenced as Ndalut & another v Nairobi City Water & Sewerage Company [2023] eKLR)· [2025] KEELRC 425 (KLR)

Ndalut & another v Nairobi City Water & Sewerage Company Ltd (Employment and Labour Relations Petition E099 of 2022) [2025] KEELRC 425 (KLR)

Employment and Labour Relations Court
14 February 2025
5,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that keeping workers in acting roles for years is unfair, even when extra allowances are paid, and awarded damages.

What this practically means

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Executive summary

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Two employees of Nairobi City Water & Sewerage Company petitioned the Employment and Labour Relations Court, complaining that they had been kept in acting positions as Security Officers (Informal Settlement Region) for three to four years without confirmation, in violation of their rights to fair labour practices (Article 41) and fair administrative action (Article 47). They sought declarations, constructive confirmation, damages, certiorari against the respondent's internal advertisement, and an order compelling their confirmation. The court noted that a previous trial judge, Ocharo Kebira J, had in a ruling of 26th October 2023 finally determined several issues - holding that the HR Manual gave the respondent discretion over acting periods, that there was no automatic confirmation, and that competitive recruitment was consistent with Article 10 national values. Since those findings were unappealed, this court declined to depart from them, confining itself to the outstanding question of whether the undefined, erratic long acting appointments violated Article 41. Applying Gicheha v Nairobi Water and Sewerage Co. Ltd, Oyatsi v Judicial Service Commission and Silas Kaumbuthu Mbutura, the court held that continuous acting, even with acting allowances, was an unfair labour practice that stagnated careers, created a false impression of promotion, and cost the petitioners pension opportunities. The petition partially succeeded: a declaration of violation was issued and each petitioner was awarded general damages of Kshs. 500,000/-, with costs and interest on default of payment within 30 days. The prayers for confirmation and certiorari, having been disposed of in the earlier ruling, were refused. J.W. Keli J delivered the judgment on 14th February 2025 in Nairobi.

Key legal issues

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01

Whether prolonged, undefined acting appointments violate the right to fair labour practices under Article 41

Holding

Yes - the erratic, undefined and inordinate acting periods, renewed beyond the 6-month period contemplated in the HR Manual without the appointing authority making a determination, violated the Petitioners' right to fair labour practices even though acting allowances were paid.

Reasoning

The court found the acting periods erratic and indefinite: the 2nd Petitioner was first appointed for an undefined period, and extensions were granted erratically. Payment of a non-pensionable acting allowance meant the Petitioners lost pension/social security opportunity and suffered career stagnation and a false impression of promotion. The court followed Gicheha and Mbutura, holding that an employer cannot invoke its own HR Manual to justify indefinite acting where the appointing authority made no determination as required.

p. 11
02

Whether the petition met the precision threshold in Anarita Karimi Njeru

Holding

Yes - the petitioners cited the violated right with precision under Article 41 and pleaded the violations with evidence.

Reasoning

The respondent argued the petition failed the Anarita Karimi Njeru and Mumo Matemu precision standard. The court rejected this, holding the petitioners identified the specific constitutional right and pleaded the manner of violation with supporting evidence. The availability of an alternative route under the Employment Act did not weaken the constitutional claim.

p. 11
03

Whether the Petitioners were entitled to confirmation or automatic appointment to the substantive positions

Holding

No - the previous trial judge's unappealed ruling disposed of those heads, and competitive recruitment accords with Article 10 national values, overriding any legitimate expectation of automatic confirmation.

Reasoning

Justice Ocharo Kebira had earlier held the HR Manual placed wide discretion on the Respondent, contained no automatic confirmation provision, and that courts will not interfere with employer recruitment absent illegality or unfairness. Those findings were unappealed and binding on a court of concurrent jurisdiction. The court upheld the ruling and awarded damages instead, following the Oyatsi approach.

p. 11
04

Whether the Public Service Commission Act, section 34, was applicable

Holding

The court noted the provision but observed it was neither pleaded nor basis for its invocation given; it nonetheless informed the conclusion that capping acting at six months is good practice.

Reasoning

The petitioners relied on section 34(3) of the Public Service Commission Act in submissions only. The court noted the provision was not pleaded and no basis for its citation was given, but observed the Act embodies best HR practice, reflected in the Respondent's own 6-month acting provision, and reinforced the finding of violation.

p. 9

Legal principles established

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  • Prolonged, erratic and undefined acting appointments amount to an unfair labour practice in violation of Article 41 of the Constitution, notwithstanding payment of acting allowances.
  • An employer cannot rely on its own HR Manual to justify indefinite acting appointments where the appointing authority fails to make the determination contemplated by the manual.
  • A court of concurrent jurisdiction cannot make decisions contrary to unappealed findings of a previous trial judge on the same documents and issues.

Court orders

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  1. 1.A declaration that keeping the petitioners in an acting capacity for over three years was unlawful and violated their right to fair labour practice.
  2. 2.General damages of Kshs. 500,000/- awarded to the 1st Petitioner as compensation.
  3. 3.General damages of Kshs. 500,000/- awarded to the 2nd Petitioner as compensation.
  4. 4.Costs of the petition to the petitioners.
  5. 5.Interest at court rate if the amounts are not paid within 30 days from the date of judgment.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) and (2)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Constitution of Kenya, 2010Article 10(2)(c)
  • Public Service Commission ActSection 34

Cases cited (11)

  • Ndalut & another v Nairobi City Water & Sewerage Company
    [2023] eKLR
  • Kenya Plantation and Agricultural Workers Union vs James Finlay (K) Limited
    [2013] eklr
  • Geofirey Mworia vs Water Resources Management Authority & 2 Others
    [2015]
  • John Ndiritu Nguyo v Kenya Ports Authority & William Kipkemboi Ruto
    [2016] eKLR
  • Oyatsi v Judicial Service Commission
    (Petition E111 of 2021) [2022] KEELRC 3 (KLR) (10 March 2022)
  • Gicheha v Nairobi Water and Sewerage Co. Ltd
    (Petition E083 of 2022) [2024] KEELRC 1984 (KLR) (30 July 2024)
  • Kenya Shoe and Leather Workers Union v Slapper Shoe Industries
    [2015] eKLR
  • Anarita Karimi Njeru vs Republic (No. 1)
    (1979) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others
    (2013) eKLR
  • Leonard Otieno vs Airtel Kenya Limited
    (2018) eKLR
  • Silas Kaumbuthu Mbutura V Meru Central Dairy Co-operative Union Ltd
    (2015) eKLR
Jurisdiction invoked
Articles 41 and 47 of the Constitution of Kenya, 2010 (fair labour practices and fair administrative action)

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, "Ndalut & another v Nairobi City Water & Sewerage Company Ltd (Employment and Labour Relations Petition E099 of 2022) [2025] KEELRC 425 (KLR)", Case Analysis (2025). Petition (not specified in judgment; earlier referenced as Ndalut & another v Nairobi City Water & Sewerage Company [2023] eKLR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/425/eng@2025-02-14

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