Kibegwa v CEO, Tourism Fund & 2 others
The bottom line
#The Employment Court refused to halt Tourism Fund's Deputy Director recruitment because the applicant provided no evidence, only allegations.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders should issue pending the petition
Application dismissed; applicant failed to establish a prima facie case or evidentiary basis for conservatory orders
The applicant asserted he met minimum qualifications but his Supporting Affidavit lacked particulars of qualifications and did not evidentially demonstrate experience. Competition for the posts was intense, with many candidates far exceeding his experience. Allegations that three shortlisted candidates were unqualified were not substantiated with particulars as required by the Evidence Act. Final relief (certiorari) could not issue at the interlocutory stage.
Burden of proof regarding unqualified shortlisted candidates
Applicant failed to discharge the evidential burden of showing the three named candidates lacked minimum requirements
Relying on Sections 107, 108 and 109 of the Evidence Act and the Supreme Court's exposition in Munya v Kithinji, the court held that he who alleges must establish facts on a preponderance of probabilities. The applicant referred to a lengthy, unpaginated Replying Affidavit and left the court to deduce the facts, without demonstrating the extent to which the colleagues failed to meet minimum requirements.
Whether certiorari can issue at the interlocutory stage
No; certiorari is final relief and cannot be granted pending hearing
The respondent contended, and the court agreed, that the order of certiorari sought in prayer 7 was final in nature and could not issue at the interlocutory stage. Although the court has jurisdiction to nullify the recruitment exercise, that jurisdiction could not be exercised on an interlocutory application without a sustainable case for conservatory relief.
Legal principles established
#- Conservatory orders bear a public law connotation and are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
- The person who alleges facts must establish them on a preponderance of probabilities in civil cases; the evidential burden requires showing sufficient evidence on a fact in issue
Court orders
#- 1.The applicant's motion dated 10th July 2026 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 259 of the Constitution; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibegwa v CEO, Tourism Fund & 2 others", Case Analysis (2026). Petition E206 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2534/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.