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ELRCPartially AllowedPetition dated 2nd September 2024

Sheria Mtaani na Shadrack Wambui & another v Muguna & another; Karanja & 10 others (Interested Parties) (Petition E212 of 2024) [2025] KEELRC 1540 (KLR)

Employment and Labour Relations Court
22 May 2025
6,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court voided Nairobi Water's renewal of its Managing Director's contract beyond the mandatory retirement age of 60, but allowed him to serve until December 2025.

What this practically means

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Executive summary

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The Petitioners challenged the renewal of the 1st Respondent's contract as Managing Director of the 2nd Respondent (Nairobi City Water & Sewerage Company) for the period 27th May 2025 to 26th May 2028, alleging breach of the Water Services Regulations, the Mwongozo Code, the Public Service Commission Act and the mandatory retirement age of 60 years. They sought declarations of illegality, certiorari to quash the renewal letter of 6th November 2024, and mandamus compelling competitive recruitment. The Respondents and 1st to 8th Interested Parties opposed, arguing the petition was sub judice before the County Assembly's Sectoral Committee, anchored on illegally obtained evidence, and that contract renewals require no competitive process. The 9th to 11th Interested Parties sought to be expunged as mis-joined. The court framed five issues and held that committee proceedings cannot limit the Court's proceedings; that an incumbent eligible for re-appointment who has served one term need not face a fresh competitive process; and that the Board followed the right procedural process in renewing the contract. However, since the 1st Respondent attains the mandatory retirement age of 60 in December 2025 and no rare knowledge, skills or competencies were demonstrated, the renewal beyond December 2025 was declared illegal, null and void. The court permitted a final contract ending December 2025 and directed competitive recruitment thereafter. No order of costs was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issues in this petition are sub judice to the proceedings of the Nairobi City County Assembly's Sectoral Committee on Water and Sanitation
  2. 2.Whether renewal of an existing contract should be subjected to competitive recruitment process
  3. 3.Whether the 2nd Respondent can appoint anyone to the position of Managing Director in contravention of the mandatory retirement age
  4. 4.Whether the renewal of the 2nd Respondent as the 1st Respondent's Managing Director was done procedurally
  5. 5.What orders to grant in the circumstances

Key legal issues

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01

Sub judice / separation of powers vis-à-vis the County Assembly Sectoral Committee

Holding

The petition is not barred; committee proceedings cannot limit the Court's proceedings, and the Respondents produced no evidence of the alleged assembly proceedings

Reasoning

The Respondents invoked sub judice, exhaustion, judicial restraint and ripeness, citing the Sectoral Committee's oversight mandate over water and sanitation. The court noted the Respondents produced no evidence of pending proceedings before the Committee and held that even if such proceedings existed, a committee's proceedings cannot limit the Court's proceedings. Separation of powers does not insulate administrative action from judicial oversight where constitutional infractions are alleged.

p. 11
02

Whether contract renewal requires competitive recruitment

Holding

No; an incumbent eligible for re-appointment who has served one term with satisfactory performance need not be subjected to a fresh competitive process

Reasoning

Adopting Peter Macithi Muigai and the quoted holding of Korir J in Republic v Cabinet Secretary for Education, the court agreed that a competitive process applies only to first-time recruitment; for re-appointment the appointing authority assesses the incumbent and decides whether to re-appoint or open the position to competition. The caveat in Muigai is that this only applies where the candidate is eligible for re-appointment by law and past performance.

p. 11
03

Mandatory retirement age and post-retirement contract

Holding

The renewal beyond December 2025, when the 1st Respondent attains 60 years, is illegal, null and void; the employer may only engage him on contract to that date if he possesses rare knowledge, skills and competencies, which was not demonstrated

Reasoning

Section 80 of the Public Service Commission Act and Regulation 70 of the Public Service Regulations bar extension of service beyond the mandatory retirement age of 60 unless the officer possesses rare, scarce and unique knowledge, skills and competencies. The Presidential Directive of 8th July 2024 reinforces that no extensions be accommodated. There was no indication the 1st Respondent possessed such rare competencies, so his re-appointment beyond December 2025 contravenes the law.

p. 13
04

Procedural propriety of the renewal process

Holding

The Board followed the right process in considering the renewal request and appraising performance; the error was only in extending beyond the mandatory retirement age

Reasoning

The court found the Board received the 1st Respondent's renewal request, analysed his performance, considered the circular, and even moderated the renewal to three years instead of five given the potential conflict between the HR Manual and the Water Services Regulations. The process was therefore proper; only the duration beyond the retirement age was flawed. The Board remains free to issue a final contract ending at December 2025.

p. 13

Legal principles established

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  • A public officer may only be engaged on contract after attaining the mandatory retirement age of 60 years if he possesses rare knowledge, skills and competencies required in the service
  • A renewal of an incumbent's contract does not require a fresh competitive recruitment process where the incumbent is eligible for re-appointment by virtue of law and past satisfactory performance
  • The proceedings of a county assembly committee cannot limit the proceedings of the Court

Court orders

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  1. 1.Declaration that the renewal of the 1st Respondent's contract beyond December 2025 is illegal, null and void
  2. 2.The 2nd Respondent is free to issue the 1st Respondent a final contract that does not extend beyond his retirement age of December 2025
  3. 3.The 2nd Respondent should start the process of recruitment of a substantive Managing Director through a competitive process beyond the 1st Respondent's retirement in December 2025, if it chooses to extend his tenure to December 2025
  4. 4.No order of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(d) of the Constitution (employment and labour relations jurisdiction)

Relief refused

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Judicial Review order of Certiorari quashing the entire renewal of Employment Contract Letter dated 6th November 2024

The court found the renewal process itself was procedurally proper; only the portion extending beyond the mandatory retirement age was vitiated

p. 13

Declaration that the entire extension is null and void

Only the extension beyond December 2025 was declared illegal; the renewal up to that date stands

p. 13

Costs of the Petition

The court declined to award costs to the Petitioners

p. 13

Mandamus compelling immediate competitive recruitment

Recruitment was directed only after the 1st Respondent's retirement in December 2025 and conditional on any extension of his tenure to that date

p. 13

Costs

There shall be no order of costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances of the case, I find that the renewal of contract beyond December 2025 is illegal, null and void.
p. 13Vitiation of the impugned renewal beyond mandatory retirement age
The 2nd Respondent is free to issue the 1st Respondent a final contract that does not extend beyond his retirement age of December 2025.
p. 13Permitted final contract
The 2nd Respondent should also proceed and start the process of recruitment of a substantive Managing Director through a competitive process beyond the retirement of the 1st Respondent in December 2025, if the 2nd choose to extend his tenure to December 2025.
p. 13Direction on competitive recruitment
There shall be no order of costs.
p. 13Costs
his reappointment beyond December 2025 cannot hold as it is in direct contravention of the law and there is no indication that he holds rare knowledge, skills and competencies which are scarce, unique and not readily available in the job market.
p. 13Rare knowledge exception not established
That as it may be, the proceedings of a Committee cannot limit the proceedings of this Court.
p. 11Sub judice and county assembly proceedings

Issues in the judgment

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minor

The framing of issue 4 is internally garbled - it refers to 'the renewal of the 2nd Respondent as the 1st Respondent's Managing Director', transposing the parties' roles

minor

The 9th Interested Party's grounds of opposition are dated 6th March 2024, months before the Petition of 2nd September 2024

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, "Sheria Mtaani na Shadrack Wambui & another v Muguna & another; Karanja & 10 others (Interested Parties) (Petition E212 of 2024) [2025] KEELRC 1540 (KLR)", Case Analysis (2025). Petition dated 2nd September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1540/eng@2025-05-22

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