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ELRCDismissedPetition dated 07.03.2025 (ELRC Petition, Nairobi)

Mboya v Brigadier (Rtd.) Richard Mbithi & another; Chief of Staff & Head of Public Service & 4 others (Interested Parties) (Petition E032 of 2025) [2025] KEELRC 1562 (KLR)

Employment and Labour Relations Court
29 May 2025
4,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a public interest challenge over East African Portland Cement's CEO recruitment, confirming merit-based selection and strict presidential appointment rules.

What this practically means

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Executive summary

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Apollo Mboya, an Advocate, petitioned the Employment and Labour Relations Court alleging that the 1st respondent (EAPCC Board Chairperson) violated his right of access to information under Article 35(1)(b), acted contrary to Articles 10, 73 and 232 by writing a letter dated 27.12.2024 to the Cabinet Secretary raising integrity and conflict-of-interest concerns about Bruno Oguda Obodha (4th interested party), and countermanded the presidential appointment of Obodha as Managing Director of East African Portland Cement Company PLC conveyed by the Notification of Presidential Action (II) of 20.12.2024. He sought declarations, certiorari quashing the letter, and costs. The respondents raised preliminary objections on jurisdiction, locus standi, proxy litigation and insufficient particularity, citing Anarita Karimi Njeru and Mumo Matemu. The Court dismissed the objections, holding the petitioner had standing under Articles 22(1) and 258(1) to litigate in the public interest, that the dispute fell within the ELRC's jurisdiction under section 12(2) of the ELRC Act, and that the petition met the pleading threshold. On the merits, the Court found only the 5th interested party, Mohamed Osman Adan, met the 70% pass mark; that the Notification of Presidential Action was not itself an appointment decision under Article 135, which requires a written decision bearing the President's seal and signature; and that the petitioner filed suit before allowing sufficient time for the information request to be processed. The petition was dismissed with each party bearing its own costs. The criminal charges against the 4th interested party were left to the trial court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioner had locus standi to institute the petition in the public interest or whether it was proxy litigation on behalf of the 4th interested party
  2. 2.Whether the Employment and Labour Relations Court had jurisdiction over the dispute
  3. 3.Whether the petition pleaded constitutional violations with the requisite precision (Anarita Karimi Njeru threshold)
  4. 4.Whether the 1st respondent's letter of 27.12.2024 violated national values, leadership and integrity provisions, and countermanded a presidential decision
  5. 5.Whether failure to provide information sought under Article 35(1)(b) violated the petitioner's right of access to information

Key legal issues

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01

Public interest standing and proxy litigation

Holding

The petitioner, an Advocate, validly brought the petition in the public interest; it was not a proxy suit for the 4th interested party

Reasoning

The respondents failed to show the petition was proxy litigation. The subject matter concerned recruitment to a public office, engaging Articles 10, 73 and 232. Article 258(1) and (2)(c) permit any person acting in the public interest to institute proceedings, and the existence of persons with direct capacity under Article 22(2) does not bar a move under Article 22(1) or 258(1), otherwise public interest litigation would be hampered.

p. 8
02

Jurisdiction of the ELRC

Holding

The dispute is about recruitment and appointment of a Managing Director, an employment and labour relations function within the Court's jurisdiction

Reasoning

Section 12(2) of the Employment and Labour Relations Court Act permits claims lodged against an employer; the petition was filed against the 2nd respondent, an employer in the public service. The absence of an employment relationship between petitioner and respondents does not oust jurisdiction where the subject matter is an employment and labour relations function.

p. 8
03

Precision of pleading in constitutional petitions

Holding

The petition met the Anarita Karimi Njeru threshold by citing the provisions violated and the manner of violation

Reasoning

The petitioner stated the Bill of Rights and constitutional provisions alleged to be violated and the manner of violation, including refusal of information, countermanding of a presidential decision, and the 4th interested party's non-assumption of office despite public communication of his appointment.

p. 9
04

Merit-based appointment and the presidential notification

Holding

Only the 5th interested party met the 70% threshold and the petitioner failed to prove a presidential appointment of the 4th interested party under Article 135

Reasoning

The Board's recommendation of the 5th interested party was consistent with Article 73(2)(a) and Article 232(g) on merit and fair competition. The Notification of Presidential Action (II) of 20.12.2024 was not shown to embody an appointment decision per Article 135, so the claim of countermanding a presidential decision was unfounded.

p. 9
05

Right of access to information

Holding

No violation established; the petition was filed only four days after the information request

Reasoning

The petitioner requested information on 3.03.2025 and filed the petition on 8.03.2025, a period the Court held insufficient for the respondents to retrieve, vet and process the information. The petitioner therefore could not allege violation of the right when he himself failed to grant sufficient time.

p. 7

Legal principles established

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  • Standing under Article 22(1) or 258(1) is not barred by the existence of other persons with capacity to sue; public interest litigation is thereby enabled
  • A Notification of Presidential Action is not itself an appointment decision; a presidential decision must be in writing and bear the seal and signature of the President under Article 135

Court orders

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  1. 1.Preliminary objections dismissed
  2. 2.Petition dismissed with no order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 22, 258 and 165 of the Constitution; section 12(2) of the Employment and Labour Relations Court Act, 2011

Relief refused

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Declaration that failure to provide information under Article 35(1)(b) violated the petitioner's right of access to information

Petitioner filed the petition without allowing sufficient time for the respondents to respond to the information request

p. 9

Declaration that the 4th interested party is the CEO of EAPCC per the Notification of Presidential Action (II)

No Presidential decision of appointment per Article 135 was exhibited; the notification by itself was not an appointment

p. 9

Declarations of violation of Articles 10, 73 and 232 and certiorari quashing the letter of 27.12.2024

Petitioner failed to establish violation of any rights or constitutional provisions

p. 9

Costs

Each party to bear own costs of 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.

The evidence is that the petitioner is an Advocate of the High Court of Kenya and has validly brought the petition in the public interest.
p. 8Public interest standing
It would appear that even where capacity to sue by persons as enumerated in Article 22 (2) (a), (b) and (d) or Article 258 (a), (b) and (d) exist, such existence does not operate as a bar to a person moving under Article 22(1) or 258(1).
p. 8Standing under Articles 22 and 258
The Court considers that the Notification could only have been about an appointment of the 4th interested party by Presidential decision per Article 135 and the notification by itself was not an appointment.
p. 9Presidential appointment under Article 135
In conclusion the petition is hereby dismissed and each party to bear own costs of the petition.
p. 10Disposition and costs

Issues in the judgment

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minor

The 5th interested party's affidavit describes his interview score as 88.14% while the Board minute exhibited by the petitioner records Mr. Mohamed Osman Adan as scoring 88.4% and recommends Mr. Mohamed O. Adan's appointment; the judgment itself uses 88.14% for the 5th interested party without reconciling the discrepancy

minor

The judgment inconsistently refers to Bruno Oguda Obodha as both the 4th interested party and at one point the '4th respondent'

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, "Mboya v Brigadier (Rtd.) Richard Mbithi & another; Chief of Staff & Head of Public Service & 4 others (Interested Parties) (Petition E032 of 2025) [2025] KEELRC 1562 (KLR)", Case Analysis (2025). Petition dated 07.03.2025 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1562/eng@2025-05-29

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