Kibegwa v CEO, Tourism Fund & 2 others

appoint, oer employment, contract any persons pursuant to the job advertisement of 25th April 2026. 8. The respondent be directed to preserve and secure all records, documents and proceedings relevant to the recruitment dispute to prevent them from being tampered with or destroyed. 9. The costs of this application be provided. 2. The motion is expressed under Article 259 of the Constitution, Section 12 of the Employment and Labour Relations Court Act Order 40 (2) and 51 of the Civil Procedure Rules and Rule 45 of the Employment and Labour Relations Court (Procedure) Rules 2024 and is based on the grounds outlined on its face and the Supporting Adavit sworn on 10th July 2026. 3. The applicant deposes that on 24th April 2026, the 2nd Respondent advertised vacancies in the oce of Deputy Director for 8 Departments in MyGov and its online portal, inviting qualied candidates to apply the Chair Board of Trustees and he submitted an application for the position of Deputy Director Resource Mobilization and Partnerships and Deputy Director Legal Services and Board co-ordination prior to the deadline on 19th May 2026. 4. That the exercise proceeded in secrecy and on 15th June 2016 the applicant learnt that shortlisted candidates had received letters inviting them for interview and a request for review of the shortlisting process was ignored as was his counsels letter of 16th June 2026 leading to the instant suit. 5. The applicant deposes that he possessed the minimum mandatory requirements both qualication and experience yet his candidature was by-passed and the Respondent shortlisted unqualied candidates and the applicant knew of ve (5) such candidates and named three (3). Laura Ayiela, Margaret Jepkoech and Stephen Barasa Nangubo. 6. That the applicant was discriminated and the process was being conducted contrary to the principles of public service. Respondent’s case 7. The Respondent’s counsel led grounds of opposition that the application was incompetent, misconceived, frivolous and vexatious. 8. That that the applicant withdrew earlier Motion after the court declined to grant interim orders with the intention of fast tracking the Petition and re-introduced the application and was estopped from doing so or he was seeking conservatory orders as previously and the process was on-going. 9. That the applicant oended the overriding objective of the court to determine suits expeditiously and the applicant breached the court’s directions on submissions and the issues for determination all within the ambit of the petition. 10. That the order of certiriori and prohibition sought were nal in nature and could not issue at the interlocutory stage and he had not shown a prima facie case or that he stood to suer prejudice incapable of being remedied. 11. That the balance of convenience and public interest militated against the grant of the orders sought, had not enjoined successful candidates and the reliefs sought would aect them. 12. The respondent contended that the applicant had not demonstrated that he was qualied to be shortlisted for the positions or that successful candidates were unqualied for shortlisting and there was no imminent danger that interview material will be destroyed. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2534/eng@2026-09-23 2

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None of the parties led submissions. 13. The singular issue for determination is whether the applicants Notice of Motion is merited. Put in the alternative whether the applicant has established a case for the grant of conservatory orders pending hearing and determination of the petition. 14. As observed by the Supreme Court in Munya v Kithinji (2014) KESC 30 (KLR) The concept of “stay orders” is more general and merely denotes that no party nor interested individual or entity is to take action until the court has given the green light.” The court proceeded to explain what constitutes conservatory orders as follows: 15. Conservatory orders” bear a more decided public law connotation for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court in the public interest. Conservatory orders therefore are not unlike interlocutory injunctions linked to such private party issues as“the prospects of irreparable harm” occurring during the pendency of a case’ or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes and priority levels attributable to the relevant causes.” See also Judicial Service Commission V Speaker of National Assembly & another (2013) eKLR. 16. In Alfred N. Mutua v Ethics and Anti-Corruption Commission (EACC) &4 others in Court of Appeal stated; The Supreme Court further expressed that in an application for conservatory orders and any other interlocutory relief, public interest is a factor to be taken into account and public interest is a condition dictated by the expanded scope of the Bill of Rights and the public spiritedness that run through the constitution.” 17. Conservatory orders are remedies in rem not in personal as held in Judicial Service Commission v Speaker of National Assembly and another (Supra). 18. See also Nubian Rights form & 2 others v Attorney General and 6 others (2019) eKLR and Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR on the applicable principles, namely prima facie case, constitutional values, suit being rendered nugatory and public interest. 19. The applicant’s assertion is principally that he met the minimum qualications for the positions of Deputy Director, Legal Services and Board Co-ordination and Deputy Director, Resource Mobilization and Partnerships and thus ought to have been shortlisted for interview and that unqualied candidates were shortlisted. 20. First, although the applicant stated that he met the minimum qualications, the Supporting Adavit had no particulars of the actual qualications, the documents attached notwithstanding. 21. Second, the applicant did not evidentiary demonstrate his experience for both positions or any of them. Put in alternative terms the applicant did not show how his many years of experience related or prepared him for the new position. 22. For instance, and without going into details, the petitioner was admitted as an Advocate on 25th November, 2025 and took out a Practicing Certicate for 2026 having obtained LLB Degree in 2020. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2534/eng@2026-09-23 3

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Thus his experience as an advocate was less than one (1) year and having been employed as a Senior Levy Clerk in 2010 and risen to Principal Levy Ocer in July 2021. Third, the Applicant did not attach a copy of job description of a Senior Levy Clerk or Principal Levy Ocer. 23. The court notes that for the eight (8) positions for Deputy Director advertised, only one position was available for each Directorate, which made the process exceeding competitive for an applicant to move from one stage to the next and being open to both internal and external candidates the overarching principle generally remains suitability for the position which goes beyond academic qualications and focuses on to skills and experience in the particular roles of the new position. 24. For the position of Deputy Director Legal Services and Board Coordination fty-one (51) individuals submitted applications and of these over 41 of them had experience of 12 years and above the longest being 28 years. 25. Similarly, 8 candidates had held a senior position for more than 10 years compared to the applicants 4 1/2 years. 26. The position of Deputy Director Resource mobilization and partnership attracted one hundred and thirty-six (136) applicants over forty-two (42) had served in senior positions for over 10 years and out of these eighteen (18) had held senior positions for 15 years and above, the longest at 30 years. 27. On the face of it, the process of shortlisting was extra ordinarily competitive and complex for the respondent and the applicant did not allege that there was favourism in the shortlisting. 28. However, in his Supporting Adavit sworn on 10th July 2026, the applicant deponed that three of his colleagues did not possess the mandatory minimum requirements for being short listed and referred to the Replying Adavit of the Acting Chief Executive ocer of the 1st respondent, a lengthy document which is neither properly paginated. The court is left to deduce whether the allegations are correct or not. 29. The applicant ought to have clearly demonstrated to what extent the three (3) colleagues did not meet the minimum requirements as ordained by the provisions of Sections 107, 108, and 109 of the Evidence Act. 30. It is trite law that the person who alleges any fact(s) is duty bound to establish their existence on a preponderance of probabilities, in civil cases. 31. In Munya v Kithinji & 2 others (Supra) the Supreme Court held: The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand the evidential burden is the obligation to show if called upon to do so, that there is sucient evidence to raise an issue as to the existence or non-existence of a fact in issue” The applicant’s Supporting Adavit lacked supportive evidence to prove the allegation. 32. Finally, the court is in agreement with the respondent’s contention that prayer Number 7 of the Notice of Motion dated 10th July 2026 is nal and cannot be granted at this stage. 33. Granted that the court has jurisdiction to a null the impugned recruitment exercise, the court is not satised that the applicant has made a sustainable case for grant of conservatory orders or any other orders at this stage. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2534/eng@2026-09-23 4

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34. The applicant’s motion dated 10th July 2026 lacks merit and it is dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE Order In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2534/eng@2026-09-23 5

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