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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Employment and Labour Relations Court had jurisdiction over the dispute
- 3.Whether the petition pleaded constitutional violations with the requisite precision (Anarita Karimi Njeru threshold)
- 4.Whether the 1st respondent's letter of 27.12.2024 violated national values, leadership and integrity provisions, and countermanded a presidential decision
- 5.Whether failure to provide information sought under Article 35(1)(b) violated the petitioner's right of access to information
Key legal issues
#Public interest standing and proxy litigation
The petitioner, an Advocate, validly brought the petition in the public interest; it was not a proxy suit for the 4th interested party
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.
Jurisdiction of the ELRC
The dispute is about recruitment and appointment of a Managing Director, an employment and labour relations function within the Court's jurisdiction
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.
Precision of pleading in constitutional petitions
The petition met the Anarita Karimi Njeru threshold by citing the provisions violated and the manner of violation
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.
Merit-based appointment and the presidential notification
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
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.
Right of access to information
No violation established; the petition was filed only four days after the information request
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.
Legal principles established
#- 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
#- 1.Preliminary objections dismissed
- 2.Petition dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
Each party to bear own costs of the petition
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 evidence is that the petitioner is an Advocate of the High Court of Kenya and has validly brought the petition in the public interest.
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).
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.
In conclusion the petition is hereby dismissed and each party to bear own costs of the petition.
Issues in the judgment
#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
The judgment inconsistently refers to Bruno Oguda Obodha as both the 4th interested party and at one point the '4th respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.