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ELRCPartially AllowedNot stated in the judgment as provided

Njoroge v Nairobi City Water and Sewerage Company Limited (Petition E122 of 2022) [2024] KEELRC 1135 (KLR)

Employment and Labour Relations Court
17 May 2024
4,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled five years in an acting job role was unfair, awarding Kshs 750,000—but did not make the employee substantive.

What this practically means

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Executive summary

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The Petitioner, employed by the defunct Nairobi City Council since 1990 and seconded to the Respondent, was appointed Acting Customer Care Supervisor-Informal Settlements Region on 26th September 2017. Her acting appointment, initially for a maximum of six months under Clause 6.3 of the Respondent's HR Manual, was extended ten times over nearly five years. A suitability interview in September 2021 was cancelled, the position advertised internally, and on 24th June 2022 a third party, Mr. Francis Odanga Odwory, was substantively appointed. The Petitioner petitioned for declarations of unfair labour practice, equal remuneration violations, constructive confirmation, legitimate expectation breaches, plus special damages, general damages, an injunction, and certiorari. The Court isolated two issues: whether five years in an acting capacity violated Article 41(1), and whether the reliefs should issue. The Court held that although the appointing authority could extend acting appointments beyond six months, such extension had to be reasonable, and five years was inordinate and unexplained, amounting to an unfair labour practice - following Kenya Shoe & Leather Workers Union, Oyatsi, and Silas Kaumbuthu Mbutura. However, the Court declined to confirm the Petitioner as substantive holder since the position had been competitively filled, and rejected the consequential claims for special damages, permanent injunction and certiorari. The Petitioner received a declaration of violation of her right to fair labour practices, general damages of Kshs 750,000.00 with interest at court rates, but each party was ordered to bear their own costs owing to her failure to diligently file submissions.

Questions the Court framed

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

  1. 1.Whether the Respondent violated the Petitioner's constitutional right to fair labour practices by retaining her in an acting capacity for five (5) years
  2. 2.Whether the Court should grant the reliefs sought in the Petition

Key legal issues

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01

Whether five (5) years in an acting capacity violated Article 41(1) fair labour practices

Holding

Yes - the retention was inordinate, unexplained and constituted an unfair labour practice

Reasoning

Clause 6.3 of the HR Manual prescribed a maximum six-month acting period, extendable 'as determined by the appointing authority'. The Court held that any extension beyond six months must be reasonable and that an employee cannot act in perpetuity. The Petitioner acted for five years, performing the full duties of the position while drawing less remuneration, and the delay in filling the position substantively was never explained. Precedents on prolonged acting appointments were followed.

p. 7
02

Whether the Petitioner was constructively confirmed as substantive holder of the position

Holding

No - acting beyond the prescribed period does not amount to automatic or constructive confirmation

Reasoning

The Court found the Respondent was entitled to fill the position through competitive recruitment and declined the reliefs premised on confirmation, noting that a substantive appointment (Mr. Francis Odanga Odwory) had already been made on 24th June 2022. The special damages, injunction and certiorari claims, which depended on confirmation, consequently failed.

p. 8
03

Quantum of compensation for the constitutional violation

Holding

General damages assessed at Kshs 750,000.00

Reasoning

The Court assessed general damages by reference to comparable authorities: County Government Workers Union vs Narok County Government (Kshs 1,000,000), James Ang'awa Atanda & 10 others v Judicial Service Commission (Kshs 750,000 each), and Silas Kaumbuthu Mbutura (Kshs 300,000). It took into account that the Petitioner remained an employee of the Respondent.

p. 8

Legal principles established

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  • An employee cannot be kept in an acting capacity in perpetuity; any extension of an acting appointment beyond the prescribed period must be reasonable
  • Retaining an employee in an acting capacity for an inordinate, unexplained period while paying them less than the substantive remuneration amounts to an unfair labour practice under Article 41(1)

Court orders

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  1. 1.A declaration that by retaining the Petitioner in an acting capacity for over five (5) years, the Respondent violated the Petitioner's rights to fair labour practices enshrined under Article 41(1) of the Constitution
  2. 2.The Petitioner is awarded Kshs 750,000.00 for violation of her constitutional rights
  3. 3.Interest on the award at court rates from the date of Judgment until payment in full
  4. 4.Each party to bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 41(1) of the Constitution (fair labour practices); Employment and Labour Relations Court jurisdiction over constitutional employment disputes

Relief refused

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Declaration of constructive confirmation / order confirming the Petitioner as substantive Customer Care Supervisor

A substantive holder (Mr. Francis Odanga Odwory) had already been appointed on 24th June 2022

p. 8

Special damages for underpayment/loss of income

No order of confirmation was made, so the claim failed

p. 8

Permanent injunction

Declined because no confirmation order was granted

p. 8

Order of certiorari quashing the Internal Advertisement and Circular

Declined for the same reason

p. 8

Costs

Each party to bear their own costs - costs would otherwise have gone to the Petitioner, but the Court declined due to her lack of diligence in filing submissions

Quotable passages

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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 light of the provisions of Clause 6.3 of the Respondent's HR Manual, it is this Court's view that the period to be determined by the appointing authority, if beyond the prescribed six (6) months, ought to be reasonable. Indeed, an employee cannot serve in an acting capacity in perpetuity.
p. 7Limits on acting appointments
I am persuaded that the Petitioner has proved to the requisite standard that her retention as Acting Customer Care Supervisor-Informal Settlements Region for a period of five (5) years was inordinate and amounted to unfair labour practices on the part of the Respondent.
p. 8Unfair labour practice finding
In the end, I enter judgment in favour of the Petitioner in the following terms:
p. 9Disposition
A declaration is hereby issued that by retaining the Petitioner in an acting capacity for over five (5) years, the Respondent violated the Petitioner's rights to fair labour practices enshrined under Article 41 (1) of the Constitution.
p. 9Final orders - declaration
The Petitioner is awarded the sum of Kshs 750,000.00 for violation of her constitutional rights.
p. 9Final orders - damages
As the Petition has succeeded, I would have awarded costs to the Petitioner but since there was no diligence in filing of submissions from her end, I will order that each party bears their own costs.
p. 9Costs order

Issues in the judgment

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minor

The judgment states the acting appointment commenced 26th September 2017 but the analysis paragraph says 26th June 2017

minor

The position is inconsistently referred to as 'Customer Care Supervisor' and 'Customer Care Representative' in the orders paragraph

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njoroge v Nairobi City Water and Sewerage Company Limited (Petition E122 of 2022) [2024] KEELRC 1135 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1135/eng@2024-05-17

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