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ELRCOtherConsolidated petitions; number not stated in the judgment (reference made to ELRC Petition E003 of 2022)

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)

Employment and Labour Relations Court
21 February 2025
628 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Byram Ongaya, Principal Judge, delivered judgment on 21 February 2025 in consolidated petitions challenging the National Social Security Fund Board of Trustees' advertisements of 10 November 2023 and 21 November 2023 for managerial and general managerial vacancies. The petitioners, through Mwale and Bietta LLP Advocates and K & A Advocates LLP, contended that the vacancies were advertised under human resource instruments that had not been approved by the Public Service Commission as required by Article 234 of the Constitution and the Public Service Commission Act, 2017, and that the appointments of the 4th to 17th interested parties contravened the order of 15 February 2024 in ELRC Petition E003 of 2022 (COFEC v NSSF Board of Trustees) directing the respondent to submit its new human resource instruments for Commission approval. The Court considered final submissions filed for the interested parties, the Attorney General, the respondent, and the Commission. 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, appointed persons met the requisite qualifications, and all instruments were subsequently approved, with the Commission withdrawing its replying affidavit of 14.03.2024. The Court found the petitioners' grievances valid but cured, marked the petition settled, and ordered each party to bear its own costs as a public interest petition.

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'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. 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. 3.Whether the grievances had been cured by the consents recorded between the respondent and the Public Service Commission

Key legal issues

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01

Whether recruitment pursuant to human resource instruments not approved by the Public Service Commission violated Article 234 of the Constitution

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The petition is marked as settled in view of the curative measures (consents) between the respondent and the Public Service Commission
  2. 2.The grievance is marked cured in view of the consents on record between the respondent and the Public Service Commission
  3. 3.Each party to bear own costs of the petition

The bench

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

BO
Byram OngayaPrincipal Judge
majority

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

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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.

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.
p. 3disposition - petition marked settled; public interest costs order
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.
p. 3final orders
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.
p. 3terms of the further consent

Issues in the judgment

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minor

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.

minor

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

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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, "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.