Njoroge v Nairobi City Water and Sewerage Company Limited (Petition E122 of 2022) [2024] KEELRC 1135 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Court should grant the reliefs sought in the Petition
Key legal issues
#Whether five (5) years in an acting capacity violated Article 41(1) fair labour practices
Yes - the retention was inordinate, unexplained and constituted an unfair labour practice
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.
Whether the Petitioner was constructively confirmed as substantive holder of the position
No - acting beyond the prescribed period does not amount to automatic or constructive confirmation
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.
Quantum of compensation for the constitutional violation
General damages assessed at Kshs 750,000.00
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.
Legal principles established
#- 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
#- 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.The Petitioner is awarded Kshs 750,000.00 for violation of her constitutional rights
- 3.Interest on the award at court rates from the date of Judgment until payment in full
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Special damages for underpayment/loss of income
No order of confirmation was made, so the claim failed
Permanent injunction
Declined because no confirmation order was granted
Order of certiorari quashing the Internal Advertisement and Circular
Declined for the same reason
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
#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.
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.
In the end, I enter judgment in favour of the Petitioner in the following terms:
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.
The Petitioner is awarded the sum of Kshs 750,000.00 for violation of her constitutional rights.
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.
Issues in the judgment
#The judgment states the acting appointment commenced 26th September 2017 but the analysis paragraph says 26th June 2017
The position is inconsistently referred to as 'Customer Care Supervisor' and 'Customer Care Representative' in the orders paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwangi v Lake Basin Development Authority (Cause E001 of 2025) [2025] KEELRC 2602 (KLR)[2025] KEELRC 2602 (KLR)29 Sept 2025
Cite this brief
#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.