Mwarania v Cabinet Secretary, National Treasury & Planning & 2 others; Corporation Limited (Interested Party) (Employment and Labour Relations Petition E034 of 2023) [2023] KEELRC 2541 (KLR)
The bottom line
#A state corporation CEO lost his bid for a third five-year term because signing two one-year extensions bound him to those shorter terms.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner is entitled to extension of his contract for a third term of five years and if he had legitimate expectation over the same
- 2.Whether the Petitioner is entitled to general damages for breach of constitutional rights
- 3.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Whether the Petitioner was entitled to a third term of five years and had a legitimate expectation of it
No. He had served two terms under the Mwongozo Code, the committee recommending the third term lacked mandate, and he voluntarily signed two one-year transition extensions, estopping him from claiming a five-year term; no legitimate expectation arose.
The Petitioner served two five-year terms, so under the Mwongozo Code no further term was automatic. The Board committee lacked mandate to recommend a third term, and the two one-year extensions were only for transition. He signed both extensions voluntarily without alleging duress, fraud or misrepresentation, so he was estopped from claiming a five-year term. His expectation of a third term was not objectively legitimate.
Whether the Petitioner is entitled to general damages for breach of constitutional rights
No. The complaints were adequately covered by employment law and the breaches were not pleaded with the requisite particularity.
The court held that the prayers sought could be handled as employment claims under the Employment Act and section 12(3) of the ELRC Act without being framed as a constitutional petition. The Petitioner did not show the statutory remedies were inadequate. Applying the Anarita Karimi standard via the Gladys Shollei case, he failed to plead with reasonable precision the provisions breached and the manner of breach, so general damages could not issue.
Whether the 1st Respondent had legal mandate to direct the Interested Party on the Petitioner's employment
Partially in the Petitioner's favour on mandate: section 5(3) limited the Minister to approving terms and conditions, not appointment or renewal, but the claim still failed overall.
The court agreed with the Petitioner that the contract gave the Board power to terminate or extend and that section 5(3) confined the Minister to approving terms and conditions of service, following Paul Kipsang Kosgei. However, this finding did not save the petition because the Petitioner had no subsisting entitlement to a third term and had voluntarily accepted the one-year transition extensions.
Legal principles established
#- Under section 5(3) of the State Corporations Act, the Minister's role is limited to approving terms and conditions of service and does not extend to appointment, reappointment or veto of the Board's decisions.
- The Mwongozo Code governs state corporations but remains a policy document that can be deviated from where circumstances justify.
- A constitutional petitioner must plead with particularity the provisions breached and the manner of breach before general damages can be awarded.
Court orders
#- 1.The Petition is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3) (as invoked by the parties)
Relief refused
#Declaration that the 1st Respondent lacks legal mandate to direct the Interested Party on employment matters
Petition dismissed as without merit
Declaration that the 1st Respondent's decisions and directions are unlawful, null and void
Petition dismissed
Declaration prohibiting interference with the Petitioner's renewed five-year term
Petition dismissed
Order restraining recruitment of a replacement Managing Director
Prayer overtaken by events; petition dismissed
General damages for constitutional violations
Petitioner failed to plead with particularity the infringed rights; claims could be handled as ordinary employment claims
Costs
Costs of the Petition awarded to the Respondents
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.
In Conclusion the Court finds the Petition without merit and the same is hereby dismissed with costs.
He is therefore estopped from seeking a five year contract when he voluntarily signed twice, one year contracts with the knowledge that his original two contracts that expired were for five years each.
there cannot be a legitimate expectation against a clear provision of the law.
whereas Mwongozo remain the governing instrument in the running of State Corporations generally, it remains a policy document which whenever circumstances demand and are justifiable, can be deviated from.
Issues in the judgment
#Date of the 1st Respondent's letter reducing the extension appears inconsistently as 9th May, 2022 in the petition summary but is listed in the prayers as '9th May,2021'
Circular reference inconsistency: OP/CAB.9/1A is dated 27th February, 2018 in one passage and 23rd November, 2010 in another
Typographical errors in the framing of issues, e.g. 'Whether Whether the Petitioner is entitled to general damages' and 'Whether WhrherWhether the Petitioner is entitled to reliefs sought'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwarania v Cabinet Secretary, National Treasury & Planning & 2 others; Corporation Limited (Interested Party) (Employment and Labour Relations Petition E034 of 2023) [2023] KEELRC 2541 (KLR)", Case Analysis (2023). Petition dated 22nd February, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2541/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.