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ELRCPartially AllowedNotice of Motion dated 30th December 2024 (in a Petition)

Gema Watho Association & another v Kenya Airports Authority & 3 others (Employment and Labour Relations Petition E222 of 2024) [2025] KEELRC 1081 (KLR)

Employment and Labour Relations Court
2 April 2025
3,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court halted KAA's Managing Director re-hiring, ruling that a public body cannot quietly re-advertise a filled position without explaining why.

What this practically means

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Executive summary

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The Applicants, the Law Society of Kenya and Francis Wanjiku, moved the Court by Notice of Motion dated 30th December 2024 seeking conservatory orders to restrain the Respondents from recruiting, interviewing or appointing any person as Managing Director of the 1st Respondent following a re-advertisement of the vacancy on 20th December 2024, and orders compelling disclosure of recruitment documents and the identity of the officer who authorised the re-advertisement. The Applicants contended that the re-advertisement circumvented the original recruitment process, interviews having been concluded on 4th December 2024, and violated Articles 10, 41, 201(d) and 232 of the Constitution. The Respondents opposed, arguing lack of locus standi under section 12 of the ELRC Act, absence of a prima facie case, prematurity of the access-to-information request, and privacy and data protection concerns. Interim ex parte orders had been granted on 3rd January 2025 stopping the recruitment. The Court held that Article 22 of the Constitution confers standing on every person, so the locus objection failed. It found the unexplained re-advertisement lacked transparency and breached Article 201(d) on prudent use of public money, establishing a prima facie case. The Court dismissed the prematurity objection, the Respondents having failed to relate Article 35 to the information sought. The application was allowed: a conservatory order restraining the recruitment pending determination of the Petition was issued, the Respondent was ordered to supply the information sought within 14 days, and costs were made costs in the 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 Applicants have locus standi to institute the petition and application
  2. 2.Whether the application for conservatory orders meets the required threshold (prima facie case, irreparable harm, balance of convenience)
  3. 3.Whether the application on access to information is premature or moot
  4. 4.Whether the re-advertisement of the Managing Director position discloses constitutional violations warranting interim relief

Key legal issues

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01

Locus standi of the Applicants before the ELRC

Holding

The objection to standing fails; Article 22 permits any person, including public-spirited persons and associations, to institute proceedings alleging threatened violation of Bill of Rights freedoms

Reasoning

The Respondents argued that under section 12 of the ELRC Act only parties with an employment relationship may come before the Court. The Court held that Article 22 of the Constitution grants every person the right to institute proceedings claiming a denial, violation or threatened infringement of a right or fundamental freedom, and the applicants could also sue in the public interest. The locus objection therefore could not stand.

p. 6
02

Whether a prima facie case was established for conservatory orders

Holding

Yes; the unexplained re-advertisement of the Managing Director position after interviews were completed showed lack of transparency and a breach of Article 201(d) of the Constitution

Reasoning

The Court found that the position had been advertised on 11th June 2024, applicants shortlisted and interviews conducted on 4th December 2024, yet the position was re-advertised on 20th December 2024 without any explanation of why the first process bore no fruit. This lack of transparency offended Article 10 and constituted wasteful use of public money under Article 201(d), establishing a prima facie case warranting confirmation of the interim orders.

p. 7
03

Prematurity and access to information under Article 35

Holding

The prematurity objection did not succeed; the Respondents did not explain how Article 35 related to the information requested

Reasoning

The Respondents contended the access-to-information prayers were premature because the request letter issued on 24th December 2024 while the petition was filed on 30th December 2024. The Court noted the Respondents had not explained how Article 35 of the Constitution related to the information requested, and ordered supply of the information sought within 14 days.

p. 7

Legal principles established

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  • Article 22 of the Constitution confers standing on every person to institute proceedings claiming a violation or threatened violation of rights in the Bill of Rights
  • Unexplained re-advertisement of a position after a completed recruitment process is a breach of the constitutional principle that public money shall be used in a prudent and responsible way

Court orders

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  1. 1.A conservatory order to restrain the Respondents, their agents and/or servants from recruiting, processing, interviewing and/or appointing any person for the position of Managing Director further to the re-advertisement of that vacancy on 20th December 2024 pending the hearing and determination of the Petition
  2. 2.The respondent to forthwith supply the information sought under prayer (iv) within 14 days
  3. 3.Costs of the application to be in the petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 162 and 165 of the Constitution of Kenya 2010

Relief refused

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Interlocutory ex parte conservatory order (prayer ii) - overtaken as interim orders had already been granted on 3/1/2025

Interim orders were granted ex parte on 3 January 2025 and the court confirmed the substantive conservatory order instead

p. 6

Order compelling disclosure of the identity of the officer who authorised the re-advertisement within 7 days

Not among the orders finally granted

Costs of the application

Costs were made costs in the petition rather than awarded to the applicants

p. 7

Costs

Costs of this application to be in the petition

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.

I find that the applicants have established a prima facie case to warrant issuance of orders sought which I hereby grant confirming interim orders
p. 7prima facie case and grant of conservatory orders
The issue of the applicants lacking locus cannot therefore stand.
p. 6locus standi under Article 22
It is not clear why there is a re-advertisement of the same position without explaining why the previous advertisements have not borne fruit. This is indeed a breach of article 201(d)
p. 7unexplained re-advertisement as breach of prudent use of public money
Costs of this application to be in the petition.
p. 7costs order
A conservatory order be issued, to restrain the Respondents Respondent, their agents and/or servants from recruiting, processing, interviewing and/or appointing any person for the position of its Managing Director further to the re-advertisement of that vacancy on 20th December 2024 pending the hearing and determination of this Petition;
p. 1final orders - conservatory order

Issues in the judgment

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minor

The judgment does not name the parties in the title/coram; the 1st Respondent is identified only in the Replying Affidavit as the Kenya Airports Authority, and the 2nd, 3rd and 4th Respondents are not named anywhere in the judgment

minor

The Grounds of Opposition of the 1st and 3rd Respondents are dated 21st January 2024, apparently before the application of 30th December 2024 was responded to - likely a typographical error for 2025

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, "Gema Watho Association & another v Kenya Airports Authority & 3 others (Employment and Labour Relations Petition E222 of 2024) [2025] KEELRC 1081 (KLR)", Case Analysis (2025). Notice of Motion dated 30th December 2024 (in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1081/eng@2025-04-02

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