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ELRCDismissedPetition dated 21.11.2023· [2024] KEELRC 2522 (KLR)

Wafula v Public Service Commission & 7 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Petition 19 of 2024) [2024] KEELRC 2522 (KLR)

Employment and Labour Relations Court
18 October 2024
BOByram Ongaya
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, a private Kenyan citizen suing on his own behalf and on behalf of the public, challenged the appointments of the 6th respondent as Director, Land Administration and the 7th and 8th respondents as Deputy Directors, Land Administration, contending they contravened Articles 10, 41, 73, 75, 232 and 236 of the Constitution. He sought declarations that the appointments were unconstitutional, that the offices were vacant, orders for fresh competitive recruitment, and that officials be personally surcharged for salaries drawn. The respondents, through replying affidavits of Janerose Karanja and Remmy Mulati, showed that the 7th and 8th respondents were appointed on merit in 2016 (and the 8th regraded in 2019 following a job-evaluation circular), and that the 6th respondent was the only eligible senior officer for promotion to Director in 2021. The 1st respondent also raised a limitation objection under section 90 of the Employment Act. The Court found the petitioner had not rebutted the explanations nor shown that any eligible officer was disadvantaged. It held that promotional vacancies need not be advertised where all eligible serving officers are upgraded or where only one qualified serving officer exists, since advertising would be an uneconomical use of public resources under Article 232. The petition was dismissed with no orders on costs, the Court viewing the outcome as fostering a professional career civil service. Judgment was delivered by Byram Ongaya, Principal Judge, on 18 October 2024.

Key legal issues

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01

Whether the appointments of the 6th, 7th and 8th respondents violated constitutional values of public service

Holding

The appointments were lawful upgrades/promotions on merit; no constitutional provision was contravened

Reasoning

The respondents explained the emplacement of each officer: the 7th and 8th respondents were appointed on merit in 2016 following advertised processes or job-evaluation regrading, and the 6th respondent was the only senior officer eligible for promotion to Director. The petitioner did not rebut this evidence or show that any eligible officer was disadvantaged, so the appointments could not be impugned.

p. 4
02

Whether internal promotional vacancies must be subjected to transparent and competitive recruitment under Article 232

Holding

No advertisement is required for promotional vacancies where all eligible officers are upgraded or only one qualified serving officer exists

Reasoning

The Court held that under Article 232's value of economical use of public resources, advertising a promotional vacancy where the only qualified candidate is known would be superfluous and uneconomical. Promotional vacancies attached to qualifications only available to serving public officers, managed through proper succession planning, are not open to external candidates.

p. 4

Legal principles established

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  • A promotional vacancy in the public service need not be advertised where all eligible serving officers are being promoted or where only one serving officer qualifies for the vacancy

Court orders

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  1. 1.Judgment entered for dismissal of the petition
  2. 2.No orders on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 73, 75, 232, 236, 2(4), 20
  • Employment ActSection 90
Jurisdiction invoked
Constitution of Kenya, 2010, Articles 10, 41, 73, 75, 232 and 236 (as invoked by the petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wafula v Public Service Commission & 7 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Petition 19 of 2024) [2024] KEELRC 2522 (KLR)", Case Analysis (2024). Petition dated 21.11.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2522/eng@2024-10-18

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