Ndalut & another v Nairobi City Water & Sewerage Company Ltd (Employment and Labour Relations Petition E099 of 2022) [2025] KEELRC 425 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether prolonged, undefined acting appointments violate the right to fair labour practices under Article 41
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.
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.
Whether the petition met the precision threshold in Anarita Karimi Njeru
Yes - the petitioners cited the violated right with precision under Article 41 and pleaded the violations with evidence.
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.
Whether the Petitioners were entitled to confirmation or automatic appointment to the substantive positions
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.
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.
Whether the Public Service Commission Act, section 34, was applicable
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.
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.
Legal principles established
#- 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
#- 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.General damages of Kshs. 500,000/- awarded to the 1st Petitioner as compensation.
- 3.General damages of Kshs. 500,000/- awarded to the 2nd Petitioner as compensation.
- 4.Costs of the petition to the petitioners.
- 5.Interest at court rate if the amounts are not paid within 30 days from the date of judgment.
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution of Kenya, 2010 (fair labour practices and fair administrative action)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.