Ogogoh v Public Service Commission & 2 others; Nyaberi (Interested Party) (Petition E007 of 2025) [2025] KEELRC 2543 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Lawfulness of acting appointment beyond six months
Holding an acting position beyond 6 months is contrary to section 34para 3 of the Public Service Commission Act and unlawful and invalid
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.
Whether the interested party should be deemed substantive CEO / confirmed
Refused - an invalid action confers no benefit and illegality cannot be legitimised
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.
Whether compensation for salary underpayment and damages should issue
Refused - such an order would not foster public policy and interests
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).
Liability of the respondents for the unlawful arrangement
The 2nd respondent, the Board/line ministry (under Article 226para 5) and the PSC bear liability for the breach and waste of public resources
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.
Legal principles established
#- 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
#- 1.Petition declined in its entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Article 22 and 23 of the Constitution (public interest petition on violation of rights); Employment and Labour Relations Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.