Abuya v CS, Ministry of Agriculture & Livestock Development & 2 others; Linyiru & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2024) [2025] KEELRC 1182 (KLR)
The bottom line
#Kenya's Employment Court upheld the appointment of the Agriculture and Food Authority's Director General, ruling that a past prosecution without pending charges doesn't disqualify a candidate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to handle this matter
- 2.Whether the respondents' actions of appointing the 1st interested party as Director General of the 3rd respondent were constitutional and done within statutory provisions
- 3.What remedies to grant in the circumstances
Key legal issues
#Jurisdiction of the ELRC over a constitutional petition challenging a public appointment
The ELRC has jurisdiction; per the Supreme Court in Kenya Tea Growers v NSSF its jurisdiction extends beyond strict employer-employee disputes to matters directly or indirectly affecting employees/employers
The respondents argued the dispute was not an employer-employee matter, so the ELRC lacked jurisdiction. The court noted that jurisdiction stems from Article 162(2) of the Constitution and section 12 of the ELRC Act, and that the Supreme Court settled the question in Kenya Tea Growers v NSSF, holding the ELRC's remit covers matters directly or indirectly affecting employment relationships. Recruitment for the Director-General post fell within that remit, so the court proceeded to determine the petition.
Whether the appointment of the 1st Interested Party satisfied Chapter Six integrity requirements despite his earlier prosecution
The appointment was proper; the 1st Interested Party was discharged in 2017, no fresh charges had been preferred, and there were no valid pending issues barring appointment
All parties agreed the 1st Interested Party had been charged in ACC No. 20 of 2015, but he was discharged on 18th October 2017 under section 87 of the Criminal Procedure Code and no fresh charges followed. The 2nd Interested Party's later letter indicated no formal charge was pending. The court reasoned that a person's life cannot be held in suspense indefinitely while the anti-corruption commission deliberates, found the 3rd respondent exercised due diligence, and held the appointment was proper and constitutional.
Whether the presumption of innocence bars consideration of past prosecution in appointments
The court accepted that mere prosecution, without pending charges or conviction, did not disqualify the 1st Interested Party
The respondents relied on Article 50(2)(a) presumption of innocence, arguing mere prosecution does not disqualify. The court found no pending prosecution existed at the time of appointment and that the discharge of 2017 had not been followed by fresh charges, so integrity concerns under Articles 10 and 73 were not established. The petition's central premise of an ongoing prosecution was therefore not proved.
Legal principles established
#- The jurisdiction of the ELRC is not limited to strict employer-employee disputes but extends to matters that directly or indirectly affect an employer or employee
- A person discharged (not convicted) several years earlier, against whom no fresh charges have been preferred, cannot be barred indefinitely from public appointment on integrity grounds
Court orders
#- 1.The petition is dismissed in its entirety
- 2.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act
Relief refused
#Declaration that the 1st Respondent does not meet Chapter Six integrity requirements by reason of the pending prosecution
Court found no pending prosecution and no unresolved integrity issue barring appointment
Declaration that the recruitment and appointment of the 1st Interested Party as Director General was unconstitutional and illegal
Court found the appointment proper and the 3rd respondent did due diligence
Order of Certiorari to quash the recruitment and appointment decisions
Petition dismissed in its entirety as lacking merit
Permanent injunction restraining recruitment, appointment or gazettement of the 1st Interested Party
Petition dismissed in its entirety
Costs on indemnity basis
No order of costs made
Costs
No order of costs; each party to bear its own costs
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.
Having stated as above, I do find that this Court has jurisdiction to handle this petition and proceed to determine it.
The question then is how long the life of the 1st interested party should come to a standstill as the Anti-Corruption Commission mules over prosecuting him.
In appointing the 1st interested party, I do not find any un constitutionalism or impropriety employed. The 3rd respondent did due diligence and even the 2nd interested party afirmed that there was no on going prosecution on going against the 1st interested party.
It is therefore my finding that the appointment of the 1st interested party was proper and there is no reason that would bar his appointment or continued service in the position of the Director General of the 3rd respondent.
Having found as above, I find that the petition herein lacks merit and the same is dismissed accordingly in its entirety. There shall be no order of costs.
Issues in the judgment
#Judgment misstates the constitutional provision as 'chapter 10' when quoting Article 10 national values, in a dispute about Chapter Six leadership and integrity
Judgment cites 'article 62(2)' of the Constitution instead of Article 162(2) as the source of the ELRC's jurisdiction
The court states the charges were 'withdrawn' in 2017 whereas the record elsewhere describes a discharge under section 87 of the Criminal Procedure Code, which is not a withdrawal or acquittal
The court states the 2nd Interested Party 'affirmed that there was no ongoing prosecution', yet the EACC's letter of 29th February 2024 had confirmed the 1st Interested Party was charged and the matter pending, and the court itself refers to that confirmation
Typographical error giving the anti-corruption case number as 'Acc No 20 of 2025' instead of ACC No. 20 of 2015
Petition prayed for certiorari and injunction (interim/preventive relief) against a recruitment said to be pending, yet by the time of filing the appointment had already been made and the 1st Interested Party had reported for duty on 17th April 2024; the pleading and the factual matrix are inconsistent on whether the recruitment was ongoing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abuya v CS, Ministry of Agriculture & Livestock Development & 2 others; Linyiru & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2024) [2025] KEELRC 1182 (KLR)", Case Analysis (2025). Petition dated 23rd April, 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1182/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.