Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedPetition filed 02.12.2016, Employment and Labour Relations Court at Nyeri (number not stated in judgment)

Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)

Employment and Labour Relations Court
20 December 2016
3,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Murang'a County illegally restarted a public board recruitment to favour a new candidate, and the Nyeri Employment Court stopped it and awarded costs.

What this practically means

#

Executive summary

#
The petitioner, a member and former acting chairperson of the Murang'a County Public Service Board, petitioned under Articles 27, 41 and 232 of the Constitution, the Fair Administrative Action Act and section 12(1)(a) of the ELRC Act, challenging the county government's abandonment of the first recruitment for the board chairperson conducted through the consultant Manpower Services, in which she was reportedly ranked best, and the launch of a second, internal recruitment that led to the interested party's nomination. The 1st respondent raised a preliminary objection of res judicata grounded on the earlier Nyeri petition by Rahab Gathoni Gichohi decided on 18.11.2016. The court held the objection failed: the petitioner was not a party to the earlier suit, filing a supporting affidavit does not confer party status, and the material facts, including the interested party's nomination, arose after that judgment. On the merits, the court found the first recruitment was never concluded or cancelled; once the vacancy was publicly declared, the county government became functus officio and could not re-advertise. It found the first process was terminated to frustrate the petitioner's fair evaluation, in reprisal for her firmness against irregular recruitment directives, contravening Articles 232 and 236. The second recruitment was therefore unlawful and discriminatory. Judgment was entered for the petitioner with declarations and orders directing that recruitment proceed per the Manpower Services process, stopping the interested party's processing, with costs to the petitioner.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the present suit is res judicata in view of the previously decided suit Rahab Gathoni Gichohi v Murang'a County Government, Petition No. ELRC 5 of 2016 at Nyeri
  2. 2.Whether the second recruitment process was lawful in view of the unfinished or pending first recruitment process
  3. 3.Whether the petitioner is entitled to the remedies as prayed for

Key legal issues

#
01

Res judicata

Holding

The suit is not res judicata; the parties differ and the issues arose after the earlier judgment.

Reasoning

The three essential elements of res judicata are an earlier decision on the issue, a final judgment on the merits, and the same parties or their privities. The petitioner was not a party to the earlier suit; filing a supporting affidavit there did not make her a party. Some material facts, such as the interested party's nomination for approval, arose after the earlier judgment of 18.11.2016 and could not have been raised then even with due diligence. The preliminary objection therefore failed.

p. 3
02

Lawfulness of the second recruitment process

Holding

The second recruitment process was unlawful because the first process was unconcluded and the declaring authority was functus officio.

Reasoning

The initial recruitment commenced and its outcome was never communicated nor was the process cancelled. Having declared the vacancy publicly, the county government's power to redeclare it was exhausted. There was thus no vacancy to re-advertise and no authority to recruit afresh for the same office. Further, terminating the first process to prevent the petitioner's fair evaluation, under pressure and intimidation from the governor, contravened Articles 232 and 236 of the Constitution, and the petitioner had a legitimate expectation to receive the results of the first process.

p. 7
03

Remedies

Holding

The petitioner is entitled to the declarations and orders as prayed, her uncontroverted evidence having established the pleaded facts.

Reasoning

Having found the second recruitment unlawful and the petitioner's constitutional rights under Articles 27 and 232 contravened, the court found her entitled as prayed. Her affidavit evidence was not specifically controverted by the respondents, and the claims of unfair pressure, discrimination and favouritism stood unrebutted.

p. 7

Legal principles established

#
  • Filing a supporting affidavit does not make the deponent a party to a suit for purposes of res judicata.
  • Once a public body declares a vacancy and invites applicants, its power to redeclare the vacancy is exhausted while the process remains unconcluded - functus officio.
  • Public officers are protected from victimization or intimidation for performing lawful duties under Article 236 of the Constitution.

Court orders

#
  1. 1.Declaration that the refusal of the 1st respondent to process the petitioner's appointment as chairperson per the Manpower Services recommendations violated her rights under Articles 27 and 232 of the Constitution
  2. 2.Order directing the 1st and 2nd respondents to proceed with the recruitment of the chairperson only in accordance with the process undertaken and recommendations made by Manpower Services
  3. 3.Order stopping the continued processing of the interested party or any other person as chairperson following the 2nd irregular recruitment exercise
  4. 4.Respondents to pay the petitioner's costs of the petition

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1)(a) of the Employment and Labour Relations Court Act, Cap. 24B; Articles 41 and 232 of the Constitution

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is the opinion of the court that filing of an affidavit in a suit does not make the maker of the affidavit a party to a suit.
p. 3res judicata - party status
once the vacancy was declared to the public by way of the initial advertisement, the county government or the governor's power to make such declaration of the vacancy and to invite applicants was thereby exhausted – it was functus officio so that there was no vacancy to be redeclared
p. 6functus officio in public recruitment
the petitioner was entitled not to apply after the second advertisement as she had a legitimate expectation to receive the results of the process she had already participated in.
p. 6legitimate expectation
the 1st respondent's actions amounted to contravention of Article 236 of the Constitution that protects public officers from victimization or intimidation for having performed the duties of the office held in accordance with the law.
Article 236 protection
judgment is hereby entered for the petitioner against the respondents
p. 7disposition

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)", Case Analysis (2016). Petition filed 02.12.2016, Employment and Labour Relations Court at Nyeri (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/110/eng@2016-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.