Esbon & another v Board of Trustees National Social Security Fund; Cabinet Secretary, Ministry of Labour and Social Protection & 16 others (Interested Parties) (Petition E006 & E002 of 2024 (Consolidated)) [2025] KEELRC 478 (KLR)
The bottom line
#Kenya's Employment Court settled a challenge to NSSF recruitment after the Public Service Commission retroactively approved the job instruments, with each party bearing own costs.
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's advertisements of 10.11.2023 and 21.11.2023 for vacancies were made in respect of human resource instruments not approved by the Public Service Commission as required under Article 234 of the Constitution and the Public Service Commission Act, 2017
- 2.Whether the appointments of the 4th to 17th interested parties to managerial and general managerial positions contravened the order of 15.02.2024 in ELRC Petition E003 of 2022 (COFEC v NSSF Board of Trustees)
- 3.Whether the grievances had been cured by the consents recorded between the respondent and the Public Service Commission
Key legal issues
#Whether recruitment pursuant to human resource instruments not approved by the Public Service Commission violated Article 234 of the Constitution
The petitioners' grievances were valid but were cured by the consents between the respondent and the Commission, under which the instruments and grading structure were subsequently approved and the recruitment deemed compliant.
The petitioners established that the vacancies advertised on 10.11.2023 and 21.11.2023 related to human resource instruments not yet approved by the Commission. However, the partial consent of 28.03.2024 and the further consent of 22.04.2024 recorded that the grading structure was approved on 26.10.2023, the advertised grades tallied with it, the career progression guidelines were approved in February 2024, and appointed persons met requisite qualifications. The Commission withdrew its replying affidavit and all instruments were subsequently approved, curing the grievance.
Legal principles established
#- Where a public interest petition alleges recruitment without approved human resource instruments, a consent recording subsequent approval and curative measures by the Commission renders the grievance settled.
Court orders
#- 1.The petition is marked as settled in view of the curative measures (consents) between the respondent and the Public Service Commission
- 2.The grievance is marked cured in view of the consents on record between the respondent and the Public Service Commission
- 3.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 234 of the Constitution and the Public Service Commission Act, 2017 (employment and labour relations jurisdiction of the ELRC)
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.
The Court finds that the petition would be marked as settled in view of the curative measures between the respondent and the Commission. In view that it was a public interest petition, each party to bear own costs of the proceedings.
In conclusion judgment is entered with orders the grievance is marked cured in view of the consents on record between the respondent and the Public Service Commission and each party to bear own costs of the petition.
That the grades as advertised on 21.11.2023 tally with the grades stipulated under the respondent’s grading structure as approved by the Commission on 26.10.2023.
Issues in the judgment
#The case number of the consolidated petitions before the Court is not stated in the judgment; only the referenced prior matter (ELRC Petition E003 of 2022) is numbered.
The amended petition for the 1st petitioner is dated 14.11.2024 while the consolidated petition for the 2nd petitioner is dated 23.01.2024, an apparent internal date inconsistency in the chronology.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esbon & another v Board of Trustees National Social Security Fund; Cabinet Secretary, Ministry of Labour and Social Protection & 16 others (Interested Parties) (Petition E006 & E002 of 2024 (Consolidated)) [2025] KEELRC 478 (KLR)", Case Analysis (2025). Consolidated petitions; number not stated in the judgment (reference made to ELRC Petition E003 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/478/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.