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ELRCDismissedPetition (ELC/ELRC, Mombasa) - as per judgment, not stated in full· [2025] KEELRC 2543 (KLR)

Ogogoh v Public Service Commission & 2 others; Nyaberi (Interested Party) (Petition E007 of 2025) [2025] KEELRC 2543 (KLR)

Employment and Labour Relations Court
25 September 2025
3,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a CEO held an acting post unlawfully for four years, yet refused him pay or confirmation because no one profits from an illegality.

What this practically means

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Executive summary

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The petitioner, a public-spirited individual and human rights defender, petitioned the Employment and Labour Relations Court at Mombasa seeking declarations that Dr. Mikah O. Nyaberi, the interested party, had been unlawfully kept in an acting capacity as CEO of the Kenya Fishing Industries Corporation (2nd respondent) for over four years since 3 March 2021, well beyond the six-month maximum under section 34 of the Public Service Commission Act; that he be deemed substantively appointed; mandamus to confirm him; compensation of Ksh. 17,718,720 for salary underpayment; and damages for violation of Articles 41, 28 and 27. The PSC, through Paul Famba, admitted the appointment exceeded the statutory period but maintained the interested party received proper acting allowances and had a duty to decline an unlawful appointment. The court framed a single issue: whether the petition should be allowed. It held that section 34's limits on acting appointments are mandatory; continuing beyond six months was unlawful and invalid, and the PSC, the 2nd respondent and the Board/line ministry bore liability for the breach and waste of public resources under Article 226(5). However, the interested party could not benefit from an unlawful arrangement; deeming him substantive CEO or ordering underpayment compensation would legitimise illegality. He also neglected to assert his rights after six months lapsed. The petition was accordingly declined with no orders as to costs, delivered at Mombasa on 25 September 2025 by M. Mbarũ, J.

Key legal issues

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01

Lawfulness of acting appointment beyond six months

Holding

Holding an acting position beyond 6 months is contrary to section 34para 3 of the Public Service Commission Act and unlawful and invalid

Reasoning

Section 34(3) permits acting appointments for at least thirty days but not exceeding six months, in mandatory terms. The interested party was appointed acting CEO on 3 March 2021 and held the office for four years, repeatedly reappointed beyond the statutory maximum. The 2nd respondent's failure to expedite a substantive appointment was unlawful; the interested party's continued holding of the role beyond the threshold was also unlawful and invalid.

p. 6
02

Whether the interested party should be deemed substantive CEO / confirmed

Holding

Refused - an invalid action confers no benefit and illegality cannot be legitimised

Reasoning

The court declined to deem the interested party substantive CEO or order confirmation. He was unlawfully holding the acting position and cannot profit from it. Issuing the orders sought would legitimise the illegality and bypass the statutory framework limiting acting appointments to six months.

p. 7
03

Whether compensation for salary underpayment and damages should issue

Holding

Refused - such an order would not foster public policy and interests

Reasoning

The interested party received acting allowances under Section C.14 of the HR Manual and continued to benefit from the unlawful arrangement. He did nothing to assert his rights after six months, neglecting to secure them since September 2021. Ordering payment of Ksh. 17,718,720 would legitimise an illegality and contravene section 34(3).

p. 7
04

Liability of the respondents for the unlawful arrangement

Holding

The 2nd respondent, the Board/line ministry (under Article 226para 5) and the PSC bear liability for the breach and waste of public resources

Reasoning

The 2nd respondent continued the unlawful acting appointment causing breach and loss to the public; the Board and line ministry should address the waste of public resources and payment of acting allowances beyond six months under Article 226(5). The PSC, as the constitutional organ organising the public service under Article 234, failed to take corrective action since 2021 and is liable.

p. 7

Legal principles established

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  • An acting appointment under section 34 of the Public Service Commission Act may only last at least thirty days but not exceeding six months, and these provisions are mandatory
  • A public officer cannot benefit from an unlawful acting arrangement exceeding the statutory period
  • An employee held in an acting position for an inordinate period should assert his rights while the position persists
  • The PSC is liable for failure to take corrective action against unlawful acting appointments

Court orders

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  1. 1.Petition declined in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 10, 19, 20, 21, 22, 23, 24, 27, 28, 41, 48, 73, 156, 226(5), 232, 233, 234(2), 252(a)(d), 259
  • Public Service Commission ActSections 34(3), 34(5), 34(6), 43(3)
  • Employment ActSections 5(5), 90
  • Human Resource Policies and Procedures Manual for the Public ServiceSection C.14 (and C.14(1) and (7))

Cases cited (11)

  • International Investment Corporation & Another v Laxnab Keshra & others [1978] KLR
    [1978] KLR
  • Chase International Investment Corporation and another v Laxman Keshra and others [1978] KLR 907
    [1978] KLR 907
  • Oyatsi v Judicial Service Commission [Petition E111 of 2021] [2022] KEELRC 3 [KLR]
    [2022] KEELRC 3 [KLR]
  • Silas Kaumbuthu Mbutura v Meru Central Dairy Co-operative Union Limited [2015] eKLR
    [2015] eKLR
  • Commission for Human Rights and Justice v Kenya Fishing Industries Corporation; Nyaberi & another [Interested Parties] [2025] KEELRC 377 [KLR]
    [2025] KEELRC 377 [KLR]
  • Malaya v Masinde Muliro University of Science and Technology [Petition 5 of 2023] [2023] KEELRC
    [2023] KEELRC
  • Moturi v National Social Security Fund [2023] KEELRC 1463 [KLR]
    [2023] KEELRC 1463 [KLR]
  • Republic v Ethics & Anti-Corruption Commission; Monari [Interested Party]; Ringera [Ex parte] [Anti-Corruption and Economic Crimes Judicial Review 1 of 2021] [2023] KEHC
    [2023] KEHC
  • Ethics and Anti-Corruption Commission v Judith Marilyn Okungu & another [2017] KECA 413 [KLR]
    [2017] KECA 413 [KLR]
  • Noorbegum Fazal [suing as a holder of power of attorney for Nadra Hussein Fazal] v Diamond Trust Bank [2015] KEHC 2816 [KLR]
    [2015] KEHC 2816 [KLR]
  • Kenya Pipeline Company Limited v Terra Craft [K] Limited [2020] KEHC 9928 [KLR]
    [2020] KEHC 9928 [KLR]
Jurisdiction invoked
Article 22 and 23 of the Constitution (public interest petition on violation of rights); Employment and Labour Relations Court jurisdiction

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, "Ogogoh v Public Service Commission & 2 others; Nyaberi (Interested Party) (Petition E007 of 2025) [2025] KEELRC 2543 (KLR)", Case Analysis (2025). Petition (ELC/ELRC, Mombasa) - as per judgment, not stated in full. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2543/eng@2025-09-25

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