Kenya National Private Security Workers Union v Public Service Commission & 6 others (Employment and Labour Relations Petition E140 & E160 of 2024 (Consolidated)) [2025] KEELRC 2728 (KLR)
The bottom line
#The Employment and Labour Relations Court upheld the Acting Registrar of Trade Unions' appointment and dismissed two constitutional petitions, warning against misusing public interest litigation.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the appointment of Anne Kagwiria Kanake as Deputy Registrar and Acting Registrar of Trade Unions
The appointments were lawful; the petitioners failed to demonstrate any illegality, irregularity or breach of section 31(1) of the Labour Institutions Act or PSC procedures.
The Commission established the office under Article 232(2), advertised, shortlisted and appointed the 3rd Respondent. Complaints against the former Acting Registrar justified her deployment back to her substantive post. No express legal provision barred appointing a probationary Deputy Registrar in an acting capacity, and the Commission acted independently without undue influence from the Cabinet Secretary.
Lawfulness of the registration of Kenya Union of Special and Professional Guards (KUSP)
The registration was lawful and the challenge is res judicata, having been preceded by two unappealed court judgments directing issuance of the certificate and registration.
In Nairobi ELRC Appeal No. 9 of 2018 the court directed issuance of the certificate, and in Kisumu ELRC Appeal No. 5 of 2020 the court directed registration. The Petitioner participated in the process, did not appeal either judgment, and could not reopen the concluded matters through a constitutional petition.
Whether the petitions constituted genuine public interest litigation
They were private litigation disguised as public interest litigation and an abuse of Article 23 of the Constitution.
The petitions challenged appointments and deployment of officers with capacity to personally litigate their own employment disputes. The court condemned this abuse but declined to award costs, issuing a warning instead.
Legal principles established
#- Appointment in a probationary capacity equals a full appointment in law, subject only to confirmation, and is not a bar to appointment in an acting capacity.
- A person deployed from an acting capacity has no entitlement to remain in that acting position and any dispute lies with their employer.
- Matters already determined by courts of competent jurisdiction and not appealed cannot be reopened through constitutional petitions; such litigation is res judicata and may constitute abuse of process.
- Private employment disputes of persons capable of litigating for themselves should not be brought as public interest litigation; abuse of Article 23 may attract personal costs.
Court orders
#- 1.Petition No. E140 of 2024 is dismissed
- 2.Petition No. E160 of 2024 is dismissed in its entirety
- 3.No order as to costs
- Jurisdiction invoked
- Article 23 of the Constitution (constitutional petition jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v Public Service Commission & 6 others (Employment and Labour Relations Petition E140 & E160 of 2024 (Consolidated)) [2025] KEELRC 2728 (KLR)", Case Analysis (2025). Nairobi Petition No. E140 of 2024; Nairobi Petition No. E160 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2728/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.