Aguda v Kenya Electricity Generating Company Plc & another

respect of or in any manner whatsoever filling the position of manager, procurement or any substantially similar position. 5. Costs be provided for. The petitioner supports the application through his affidavit and avers that the 1st respondent offered and he accepted the position of Manager, Procurement, by a formal offer letter dated 23 December 2025, thereby giving rise to a valid and binding contract of employment. In response to the offer letter, the petitioner had a legitimate expectation of taking up the appointment; he informed his employer of his intention to resign and take up the new employment with the 1st respondent. The petitioner avers that the 1st respondent unlawfully and without any lawful justification failed and refused to permit him to report for work, issue him with the formal contract of employment, or communicate any decision on the status of the petitioner’s appointment, in violation of the petitioner’s constitutional and statutory rights. The 2nd respondent issued adverse findings against the petitioner without allowing him to respond to the specific allegations that were the basis of those findings, in violation of the rules of natural justice and the petitioner’s right to fair administrative action and a fair hearing under Articles 47 and 50 of the Constitution. The petitioner avers that he has a prima facie case with a probability of success and stands to suffer irreparable harm that cannot be adequately compensated in damages if the 1st respondent is permitted to fill the said position pending the determination of the petition. In his affidavit, the petitioner avers that, through a letter dated 23 December 2025, the 1st respondent offered him employment, and he accepted on conditional terms on 24 December 2025. The condition was that he should submit all Chapter Six documents and comply with the 1 st respondent's due diligence requirements. The petitioner therefore resigned from his previous employment under the legitimate expectation that he had secured employment and had the offer letter. However, the 1 st ELRC NAIROBI RULING PETITION NO. E209 OF 2026 2

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respondent failed to honour its obligations under the employment contract. The petitioner avers that under Article 41 of the Constitution, his right to fair labour practices was violated. The letter dated 13 January 2026 informed the petitioner that it was conducting further due process after receiving allegations from members of the public concerning his credentials and integrity, without first verifying the allegations. The allegations made against the petitioner were: a) That he was dismissed and convicted for the forgery of an admission letter from the Kenya Defence Forces. b) That he was terminated from employment due to theft of fertilizer from One Acre Fund. c) That he was dismissed from employment and later charged in court in relation to theft of iron sheets from East African Foundry Works Limited. d) That he was terminated from employment due to forgery and theftrelated concerns at PATH International. e) That at the National Assembly, the petitioner had been involved in administrative and procedural malpractices, including falsification of tender committee evaluation minutes. On these allegations, the 1st respondent required the petitioner to file a response that would either allow his offer of employment to be confirmed, require further verification, or require withdrawal. The petitioner responded on 19 January 2026 and attached evidence from the Parliamentary Service Commission, court records, and records from previous employment. However, in violation of his rights under Article 47 of the Constitution, the 1st Respondent has refused to communicate its decision on his appointment. The respondents failed to consider the evidence of the Clerk of Senate/Secretary, Commission (PSC). ELRC NAIROBI RULING PETITION NO. E209 OF 2026 3 Parliamentary Service

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On 2 March 2026, the petitioner received the letter from the 2nd respondent demanding that he present himself before it for an interview and record a statement on 16 March 2026. The petitioner complied, but since then there has been no communication. No written reasons have been issued as to why the offer of appointment has not been confirmed, since these proceedings seek the court's intervention. Unless the orders sought are issued or the position sought is preserved, the petitioner will suffer irreparable loss and damage that cannot be compensated by way of damages. In reply, the 1st respondent filed Grounds of Opposition, contending that the offer of employment made on 23 December 2025 was conditional, subject to the petitioner's submission of documents, compliance with Chapter Six of the Constitution on integrity, and completion of due diligence. The 1st respondent’s due diligence revealed that the petitioner had been dismissed from his previous employment for concerns regarding honesty and integrity, as well as alleged forgery of documents, theft, and corruption. The petitioner was allowed to respond by letter dated 19 January 2026. The 1st respondent’s further grounds in opposition to the petitioner's petition are that it engaged the 2 nd respondent to assist in verifying the information provided by the petitioner. The verification revealed that the petitioner had falsely misrepresented the position and grade that he held at the PSC. The petitioner indicated that he held the position of Ag. Deputy Chief Procurement Officer, but PSC clarified that this position does not exist. In view of these findings, the 1st respondent withdrew the offer of employment issued to the petitioner. The petitioner had no legitimate expectation of appointment, as the offer was conditional on completion of due diligence. The petitioner’s misrepresentation of his professional qualifications vitiated the offer. ELRC NAIROBI RULING PETITION NO. E209 OF 2026 4

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The 1st respondent is a publicly traded entity with significant government shareholding, which means public funds are directly invested in it. Employees of the 1st respondent must therefore meet integrity requirements. Procurement is a key function within the establishment, and the person appointed to spearhead it must be suitably qualified in terms of professional and ethical standards. Misrepresentations and lack of full disclosure marred the petitioner’s recruitment process. The position of procurement in a public entity cannot be suspended pending the hearing of the petition, and the continuance to fill the position favours the 1st respondent. Accordingly, the application should be dismissed with costs. The 1st respondent also filed the Replying Affidavit of Beatrice Kandie, the General Manager, Corporate Services, and avers that the position became vacant and recruitment commenced on 16 September 2025. The job description required at least 12 years of experience in the relevant field, with at least 4 years in middle-level management in a large organisation. One had to fulfil Chapter Six of the Constitution requirements. The petitioner applied for the position, submitted his resume, and stated that he held the position of Ag. Deputy Chief Procurement Officer at the PSC. During the process, the 1st respondent issued the petitioner an offer letter on the condition that he submit the requisite compliant documents in accordance with Chapter Six of the Constitution. Candies avers that, as part of the due diligence, the 1 st respondent wrote to the PSC, which indicated the petitioner’s role was Supply Chain Officer and not as stated in his application. Additionally, the 1 st respondent received letters dated 27 December 2025 and 8 January 2026 from members of the public stating that the petitioner had been dismissed from previous employment for misconduct and gross misconduct. In view of the contradictions, through a letter dated 13 January 2026, the 1 st respondent invited the petitioner to respond to the due diligence findings. Through a letter dated 19 January 2026, the petitioner responded and confirmed that he had been employed by PSC as a Supply Chain Officer ELRC NAIROBI RULING PETITION NO. E209 OF 2026 5

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but had been deployed to the Parliamentary Joint Service as Deputy Chief Procurement Officer. This information had not been provided in the application or during the interview process. Among the annexures, the petitioner provided a memo dated 6 October 2023 from the Director General appointing him as Deputy Chief Procurement Officer from 1 October 2023. The memo was not printed on the institutional letterhead. The petitioner provided a letter dated 19 January 2026 from the Ag. Deputy Director, Supply Chain Management at PSC, confirming that he had been working in the department but not confirming that he had been appointed to such a position. The petitioner did not possess the required seniority as stated in his application. He was initially employed at PSC as a procurement officer, and his current position is supply chain management officer, effective from 5 November 2025. This appointment took effect after submitting his application to the 1st respondent. Candies aver that, in view of the conflicting information from the petitioner, the 1st respondent submitted the documents the petitioner provided to the 2nd respondent for integrity verification. Investigations were conducted, and through a letter dated 29 May 2026, the 2 nd respondent indicated that investigations revealed that the petitioner’s position at PSC was Supply Chain Officer from November 2025. This meant he did not possess the required experience for the 1 st respondent's position of Procurement Manager, which required 12 years' experience and at least 4 years in middle-level management. The 2nd Respondent also discovered that the role of Deputy Chief Procurement Officer does not exist within PSC. On these findings, the 1st Respondent withdrew the offer letter by notice dated 30 June 2026, as stated in the petition. The discrepancies between the application letter and the due diligence findings confirmed that the petitioner failed to fully disclose various fundamental issues. He also did not meet the requirements for the advertised position. The 1 st respondent ELRC NAIROBI RULING PETITION NO. E209 OF 2026 6

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has further received communication from the PSC regarding the petitioner's position and, in view of the integrity and propriety requirements in public bodies such as the 1st respondent, as well as the requirements of public procurement law and Article 227 of the Constitution. The petitioner's appointment was withdrawn. The interim orders sought should not be granted. The 1st respondent is funded through public funds. To ensure public confidence and accountability, granting the orders sought will not secure the rule of law. No harm or inconvenience will be occasioned to the petitioner. The 2nd respondent also filed Grounds of Opposition, stating that Article 79 of the Constitution establishes the Commission to ensure compliance with and enforcement of the provisions of Chapter Six of the Constitution. It is also guided by the Ethics and Anti-Corruption Commission Act to develop and promote standards and best practices in integrity and ethics, monitor and investigate breaches of codes of ethics, and receive complaints and conduct investigations into breaches. The 2nd respondent is also mandated under the Leadership and Integrity Act to promote, monitor and enforce compliance with principles of leadership and integrity under Chapter Six of the Constitution. Under its mandate, the 2nd respondent has a constitutional and statutory mandate to receive requests for integrity verification from public entities, undertake appropriate verification, analyse the materials and communicate its findings. Integrity verification is an administrative process, and, in this case, employment in the public service must be subject to it within the 2nd respondent's mandate. The issues raised by the petitioner concern disputed questions of fact, including documentation considered by the 2 nd respondent. The petitioner has not established a prima facie case with a chance of success to justify the interim orders sought against the 2 nd respondent. Granting such orders before hearing the petition would interfere with and impede the Commission's constitutional mandate to consider the evidence ELRC NAIROBI RULING PETITION NO. E209 OF 2026 7

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and legal arguments presented by the parties. Hence, the application should be dismissed. On the application, the petitioner submitted that the reliefs sought in the interim are solely against the 1st respondent and not the 2nd respondent. The conduct of the 2nd respondent is referred to only to the extent that the 1st respondent has admitted it acted on the 2 nd respondent's investigations. The petitioner has established a prima facie case, as required in Mrao Limited v First American Bank of Kenya & 2 others [2003] KLR. The Respondent has infringed a right that requires the Court to address it by way of an interim order before hearing the main petition. The petitioner thus submitted that, based on the materials disclosed to the Court, he had been issued an offer letter to take up employment with the 1 st Respondent, and that there was good cause to preserve the position pending the hearing of the petition. By a letter dated 23 December 2025, the 1st Respondent offered the petitioner employment as Manager, Procurement, to take effect immediately upon acceptance. By a letter dated 24 December 2025, the petitioner accepted the offer and submitted the necessary documents required under Chapter Six of the Constitution. The petitioner submitted that upon his acceptance of the employment contract, a valid employment relationship commenced. He had a legitimate expectation that he would commence his employment with the 1st respondent and hence resigned from his previous employment. The requirement to submit to Chapter Six of the Constitution was conditional to the offer of employment, but upon acceptance, the position was closed to him. He responded to all the allegations made on 19 January 2026, and since then, he has not responded to confirm acceptance of the offer of employment. ELRC NAIROBI RULING PETITION NO. E209 OF 2026 8

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The petitioner submitted that his rights under the Constitution have been violated, particularly Article 47 of the Constitution, as decisions have been taken adversely to his case without him being heard. The right to fair labour practices is also violated because the respondents have denied the petitioner the right to employment despite an offer and acceptance. Unless the orders sought are issued, the petitioner will suffer irreparable harm and significant job loss. If the 1st respondent is allowed to fill the position before the petition is heard and determined, a third party may occupy the position of procurement manager to the petitioner's detriment. No compensation can cure the injustice. In the alternative, an order of reinstatement or re-engagement under section 49 of the Employment Act may not be practical since this is a single position. Preserving the position offered to the petitioner would be the only relief available. The petitioner submitted that the balance of convenience favours him since great prejudice will be visited against him if the orders sought are not issued. The application be allowed with costs. The 1st Respondent submitted that the application lacks merit and should be dismissed with costs. The petitioner seeks injunctive relief, and the test for granting an injunction is well settled, as established in Giella v Cassman Brown & Co Ltd [1973] EA 358: an applicant must demonstrate they will suffer irreparable injury that an award of damages would not adequately compensate. If the court is in doubt, it will decide an application on the balance of convenience. The 1st Respondent has demonstrated that, on the material presented to this court, the Petitioner does not have a prima facie case with any chance of success; the Petitioner has not suffered irreparable harm; and the balance of convenience tilts in favour of the 1 st Respondent. This is because the employment relationship depends on an employee's honesty and good faith, particularly at the recruitment stage. The material an employee presents when an employer is considering employment should ELRC NAIROBI RULING PETITION NO. E209 OF 2026 9

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be honest and truthful, enabling the employer to make the correct decision and assign duties that match the employee's qualifications. The 1st Respondent is a Government-Owned Enterprise listed on the Nairobi Stock Exchange, with the Government as the majority shareholder. The position of Procurement Manager, Grade KGN 3, became vacant within the 1st Respondent, which commenced a recruitment process. On 16 September 2026, the said position was advertised, inviting interested and qualified applicants to apply. The job description for the position was also advertised and indicated that the person intended for the position must have the following qualifications: a. Experience in the relevant field of at least 12 years, with at least 4 years in middle management in a large organisation. b. Fulfil the requirements of Chapter 6 of the Constitution. Article 75(2)(a) in Chapter 6 of the Constitution specifically provides that the guiding principles of leadership and integrity include selection based on personal integrity, competence and suitability. The 1st Respondent considered the applications received, including the Petitioner’s application, and acknowledged receipt of the Petitioner’s application. His application included a CV indicating that he occupied the position of Acting Deputy Chief Procurement Officer at the PSC from June 2021. The Petitioner was one of the candidates shortlisted for the position. He was subsequently interviewed and identified as the successful candidate. Accordingly, the 1st Respondent issued an offer of employment letter dated 23 December 2025. It was a conditional offer subject to submission of the requisite documents compliant with Chapter 6 of the Constitution on integrity and completion of due diligence exercises by the 1st Respondent. Conducting due diligence to establish the suitability of identified candidates for substantive appointment is also part of compliance with Clause 2.16.3 of the Respondent’s HR Policy, and it is common practice for every prudent employer. ELRC NAIROBI RULING PETITION NO. E209 OF 2026 10

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The 1st Respondent wrote to the PSC, which was listed as the Petitioner’s current employer, to confirm the terms of his employment pursuant to Clause 2.19.2 of the Respondent’s HR Policy. By letter dated 10 December 2025, the PSC responded and indicated that the Petitioner’s role and job title at the time were Supply Chain Officer I, PSC Scale 10. This contradicted the Petitioner’s indication in his CV of his role being Ag. Deputy Chief Procurement Officer. Additionally, the 1st Respondent received letters dated 27 December 2025 and 8 January 2026 from members of the public indicating that the Petitioner had been dismissed from his previous posts due to concerns related to honesty and integrity, including alleged forgery of documents, alleged theft, and other concerns relating to alleged corruption. These letters were copied to the 2nd Respondent. In view of the contradictory information regarding the Petitioner’s position at the PSC, as well as the information the 1st Respondent received by letter dated 13 January 2026, the 1st Respondent informed the Petitioner of these concerns and allowed the Petitioner to respond to the 1 st Respondent’s due diligence findings. By letter dated 19 January 2026, the Petitioner responded to the 1st Respondent and provided various explanations and attachments. In this response, the Petitioner confirmed that he was employed as Supply Chain Officer I, PSC Scale 10, but was deployed to the Parliamentary Joint Service (PJS) as Deputy Chief Procurement Officer, PJS (Acting Principal Procurement Officer, PJS), Scale 12. The Petitioner had not provided this information to the Respondent at any time during the interview process. The Respondent also received a letter dated 26 January 2026 from the Clerk of Senate/Secretary at PSC which stated; a. The Petitioner was initially employed on 1 June 2021 to the position of Procurement Officer II PSC Scale 9. b. The Petitioner’s current position at PSC is Supply Chain Management Officer I PSC Scale 10 and was assigned to that position administratively on 5 November 2025, which was after the Petitioner ELRC NAIROBI RULING PETITION NO. E209 OF 2026 11

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submitted his application to the Respondent and in the course of the recruitment process to the Procurement Manager position within the Respondent. c. The PSC does not have an office designated as Deputy Chief Procurement Officer. 19. In light of the foregoing, there was a need for the 1st Respondent to conduct further due diligence to ascertain the correct position regarding the Petitioner’s position. The 1st Respondent therefore sought assistance from the 2nd Respondent. On 2 March 2026, the 2nd Respondent conducted an investigation and invited the Petitioner to write a statement. The investigations revealed, inter alia, that: a. The Petitioner’s position at PSC was Supply Chain Officer I, PSC Scale 10, which he had occupied from November 2025. This meant that the Petitioner did not possess the requisite experience for the Procurement Manager role, which required 12 years’ experience, including at least 4 years in middle management. b. The role of Deputy Chief Procurement Officer does not exist within PSC. In view of this, by letter dated 30 June 2026, the 1st Respondent withdrew the offer of employment issued to the Petitioner and explained that the discrepancy in the seniority of the Petitioner’s role at PSC had not been resolved. Therefore, there was no basis to confirm that the Petitioner possessed the requisite senior-level and mid-level management skills and experience required for the Procurement Manager role. The 1st Respondent was not satisfied that the Petitioner met all the requirements for the role and therefore withdrew the offer contained in the Offer Letter. The Contradictions and inconsistencies in the information and documentation provided by the Petitioner, including his CV, also justified the 1st Respondent's withdrawal of the offer. In Mongare v Kisii University & 3 others (Petition 16 of 2016) [2022] KEELRC 13037 (KLR), the ELRC dismissed the Petitioner’s claim and upheld his dismissal for discrepancies in his academic qualifications that emerged after his ELRC NAIROBI RULING PETITION NO. E209 OF 2026 12

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recruitment was fair. In making this finding, the court held that the Petitioner presented a suspicious, forged PhD degree certificate to obtain employment at Kisii University. The Petitioner’s documents show contradictions and inconsistencies that were not satisfactorily explained, leading to a conclusion of dishonesty and intentional misrepresentation. Dishonesty in an employment relationship undermines the trust expected and is a valid and fair reason to end the relationship. Therefore, the 1st Respondent's withdrawal of the offer was justified in the circumstances, as the Petitioner had not been completely honest and forthcoming about his position at PSC and PJS. No legitimate expectation of employment was created for the Petitioner in the Procurement Manager role, noting that the Offer Letter was conditional on submission of documentation relating to Chapter 6 of the Constitution and completion of due diligence exercises by the 1st Respondent. The court in Ethics and Anti-Corruption Commission v Rambeka (Anti-Corruption and Economic Crimes Civil Suit E013 of 2021) [2023] KEHC 996 (KLR) held that the employment of the employee by the EACC, which is a state agency, was null and void ab initio where the employment was based on false academic qualifications presented by the employee. The court held that the employee's shortlisting in the interview process and his emergence as the best candidate were vitiated by the misrepresentation. Thus, in Wilson K.C Shollei v Independent Electoral and Boundaries Commission [2014] eKLR, the court emphasised that stopping the recruitment or a replacement for an employee would amount to interfering with the discharge of the activities and mandate of an employer and that an order barring an employer from carrying out a management mandate such as recruitment should be given after much reflection and with circumspection. The orders sought herein cannot issue in the interim, and the application should be dismissed with costs. The 2nd respondent's submissions support the 1st respondent’s position. ELRC NAIROBI RULING PETITION NO. E209 OF 2026 13

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Determination The twin issues for determination are whether, pending the hearing of the petition, the court should issue a temporary injunction restraining the 1 st respondent from advertising, re-advertising, shortlisting candidates or making an offer of appointment for the position of procurement manager. The petitioner is also seeking to stop the filling of the same position. The petitioner has confirmed in his affidavit and submissions that through a letter dated 23 December 2025, the 1 st respondent offered him the position of procurement manager on condition that he subjected himself to the due diligence and submission of Chapter Six of the Constitution by presenting the following: a) Police clearance certificate from the Director of Criminal Investigations. b) Clearance certificate from the Higher Education Loans Board. c) Tax compliance from KRA. d) EACC clearance certificate from the Ethics and Anti-Corruption Commission. e) Report from an approved Credit Reference Bureau. The offer for employment was therefore conditional. Despite accepting the employment offer on 24 December 2025, the petitioner had to satisfy the conditions precedent to assuming office. The 2nd respondent conducted the due diligence and integrity investigations. The petitioner wrote his statement with the 2 nd respondent. This revealed discrepancies between his application, interview presentations, and the due diligence submissions. The 1st respondent also engaged the PSC where the petitioner was employed during his application and interview period. They confirmed his employment status, which varied from what he stated in his resume. ELRC NAIROBI RULING PETITION NO. E209 OF 2026 14

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The petitioner asserts that, after accepting the offer of employment on 24 December 2025, he had a legitimate expectation of securing employment; thus, the interim orders sought, seeking to stop the 1st respondent from advertising the same or filling it, pending the hearing of his petition, should be allowed. The doctrine of legitimate expectation is well recognised in administrative law. However, the law does not protect every expectation, only those that are 'legitimate'. In Transparency International - Kenya v Omondi [2023] KECA 174 (KLR), the court held that although the employee’s fixed-term employment contract had a renewal clause, the expectation of automatic renewal was not legitimate because the contract had start and end dates. Hence, the requirements for a legitimate expectation must be met, as held in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2015] KESC 13 (KLR). The court outlined that the requirements must adhere to the principles: a. there must be an express, clear and unambiguous promise given by a public authority; b. the expectation itself must be reasonable; d. the representation must be one which it was competent and lawful for the decision-maker to make; and e. a legitimate expectation cannot conflict with clear provisions of the law or the Constitution. As noted above, and as admitted by the petitioner, he got a conditional offer of employment by the 1 st respondent; his responses to the due diligence and integrity concerns returned with issues necessitating the 2 nd respondent to address. The due diligence the petitioner was subjected to was reasonable and brought to his attention in the offer of employment. He cannot turn round ELRC NAIROBI RULING PETITION NO. E209 OF 2026 15

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and assert that his rights under the Constitution and the law have been violated and, therefore, that interim orders should be issued. The third principle largely ties to the second. The petitioner is clear that they do not seek any interlocutory orders against the 2 nd respondent. The addition to the petition arises from the 1 st respondent's reference of his case to the 2nd respondent. As outlined in the 2nd respondent's Grounds of Opposition, they are simply discharging their constitutional and lawful duties in responding to the 1 st respondent's request to undertake due diligence and integrity investigations. A response has since been issued. Hence, under the Constitution and the law, Chapter Six of the Constitution is the anchor on which the respondents based their integrity and due diligence investigations into the petitioner. Accordingly, the petitioner cannot assert a legitimate expectation claim for interim orders as herein couched. This is aptly captured in Transparency International - Kenya v Omondi [2023] KECA 174 (KLR), where the court held: “A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit or advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.” The petitioner, having received a conditional offer of employment and being directed to subject himself to constitutional and lawful procedures, cannot have the interim orders sought issued. Accordingly, the application dated 22 June 2026 is hereby dismissed. Costs shall abide the outcome of the petition. Delivered in open court this 30th day of September 2026 ELRC NAIROBI RULING PETITION NO. E209 OF 2026 16

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M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… ……… ELRC NAIROBI RULING PETITION NO. E209 OF 2026 17 and …………………………………..

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