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Kango & another v Ministry of Interior and Coordination of National Government & 4 others; Kipaa (Interested Party) (Petition E018 of 2025) [2025] KEELRC 1563 (KLR)

Employment and Labour Relations Court of Kenya
29 May 2025
5,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed an Assistant Chief's appointment because she lacked the advertised residency requirement and a valid certificate of good conduct.

What this practically means

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Executive summary

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The petitioners, residents led by Allan Saitoti Kango, challenged the appointment of the interested party as Assistant Chief Grade II of Matasia Sub-Location, Ngong Division, Kajiado North, following a recruitment by the Office of the President through the Deputy County Commissioner, Kajiado North. They sought declarations that the respondents were bound by the advertised minimum qualifications and that the appointment breached Articles 10, 27, 47, 73 and 232 of the Constitution, the Fair Administrative Action Act, the Public Service Commission Act and the Public Service Regulations, 2020, together with certiorari and mandamus orders. The respondents, in a replying affidavit of the Deputy County Commissioner Yusuf Mohamed, maintained that the recruitment followed interviews in which the interested party scored 86%, asserted she was a bona fide resident, and argued the petition was malicious, a personal grievance and pleaded without precision, citing Mumo Matemu and Nyamu J's remarks on public interest. The interested party did not enter appearance. The court found the interested party lacked the residency requirement and a certificate of good conduct at the material time, that the respondents failed to comply with the mandatory advertisement requirements of section 37 of the Public Service Commission Act, and that the averments against the interested party stood uncontroverted. Judgment was entered for the petitioners on all heads: declarations of illegality and nullity, certiorari quashing the appointment letter dated 22nd January 2025, mandamus directing appointment of the highest-scoring meritorious candidate from the remaining pool and a fresh advertisement and recruitment process, plus costs to the petitioners.

Questions the Court framed

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

  1. 1.Whether the interested party met the advertised prescribed minimum qualifications, in particular the residency requirement and possession of a certificate of good conduct, at the time of recruitment, selection and appointment
  2. 2.Whether the respondents complied with the mandatory advertisement requirements under section 37 of the Public Service Commission Act, 2017 and the applicable Human Resource Policies and Procedures Manual, 2016
  3. 3.Whether the appointment of the interested party as Assistant Chief Grade II of Matasia Sub-Location was lawful, fair and compliant with Articles 10, 27, 47, 73 and 232 of the Constitution and the doctrine of legitimate expectation
  4. 4.Whether the petitioners established their case with the precision required in constitutional petitions
  5. 5.What remedies, if any, flow from the established violations

Key legal issues

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01

Whether the interested party met the advertised minimum qualifications (residency and certificate of good conduct)

Holding

The court found she lacked both the residency requirement and a certificate of good conduct at the material time, and the respondents were unresponsive to residents' protests.

Reasoning

The advertisement's foremost criterion was residency. The interested party was said to be from Lekuruki Sub-Location and her ID indicated Upper Matasia as place of origin. She had no certificate of good conduct at recruitment, only a receipt of application, yet was shortlisted while others were disqualified for lacking a computer certificate. The respondents did not controvert the residency averment nor respond to the residents' memorandum of protest.

p. 10
02

Compliance with section 37 of the Public Service Commission Act on advertisement of vacancies

Holding

The respondents failed to comply with the statutory mode of advertisement, rendering the recruitment process procedurally improper.

Reasoning

Section 37 mandates advertising on the Commission website, at least one daily newspaper of nationwide coverage, radio and other modes to reach the widest population. The initial advertisement did not elicit the required PSC requirements and drew minimal applications; the court found the respondents failed to comply with section 37 and with the HR Manual's 21-day advertisement period.

p. 10
03

Whether the petition was pleaded with precision and whether it was a personal grievance

Holding

The court found the petitioners established a genuine case and that constitutional and statutory violations were proved; the personal-grievance and imprecision objections raised by the respondents did not prevail.

Reasoning

The respondents argued the petition was malicious and failed the precision test per Anarita Karimi Njeru as restated in Mumo Matemu. The court, on the evidence and the respondents' own exhibits, found the petitioners had established a genuine case and violations as alleged, and that the petition sought declaratory and corrective orders rather than personal appointment.

p. 12

Legal principles established

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  • Where a public office vacancy is advertised with prescribed minimum qualifications, the appointing authority is legally bound to adhere to those qualifications, and an appointment of a candidate lacking them is unlawful and unconstitutional.
  • Section 37 of the Public Service Commission Act imposes a mandatory duty to advertise public office vacancies widely, including on the Commission website, at least one daily newspaper of nationwide coverage, the radio and other modes of communication.
  • Where an allegation made against an interested party is not controverted by the party bearing the burden of response, it stands as unchallenged.

Court orders

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  1. 1.A declaration under Articles 41, 47, 23 and 232(g) of the Constitution and Sections 4, 5 and 6 of the Fair Administrative Action Act that the respondents are legally bound to consider the originally advertised prescribed minimum qualifications, competence, suitability, experience, merit and ability when approving and appointing any candidate to the position of Assistant Chief Grade II of Matasia Sub-Location
  2. 2.A declaration that the respondents, in appointing the interested party, failed to adhere to the originally advertised minimum qualifications and merit-based criteria, thereby violating constitutional and statutory principles governing public service appointments
  3. 3.A declaration that the respondents' failure to uphold the advertised qualifications renders their actions illegal, unconstitutional, and a violation of fair administrative action and the doctrine of legitimate expectation
  4. 4.A declaration that the approval and appointment of the interested party is null and void and should be set aside
  5. 5.A judicial review order of certiorari quashing the respondents' decision communicated through the letter referenced CON.ST.1/2/1/VOL.IV/169 dated 22nd January 2025 or any prior or subsequent correspondence conveying the appointment of the interested party
  6. 6.A judicial review order of mandamus compelling the respondents to immediately select and appoint a deserving and meritorious candidate with the highest marks from the remaining pool of applicants
  7. 7.A judicial review order of mandamus compelling the respondents to undertake a fresh advertisement, shortlisting and recruitment process for the position, ensuring full compliance with the law
  8. 8.Costs of the Petition awarded to the petitioners

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original constitutional petition jurisdiction under Articles 23 and 47 of the Constitution and the Fair Administrative Action Act, No. 4 of 2015

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 returns that the petition must succeed and the petitioners have established their case.
p. 10Outcome
The petitioners have established that the interested party lacked requisite qualifications namely, she was not a resident of the area and she did not, by the respondents’ own exhibited evidence, possess the requisite certificate of good conduct as at recruitment, selection and appointment time.
p. 10Minimum qualifications and eligibility
The impugned appointment has been shown to have been unlawful and unconstitutional both in substance. It will be reversed in terms of the petitioners’ prayers.
p. 12Nullity of appointment
Costs of the Petition are awarded to the Petitioners.
p. 13Final orders and costs

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, "Kango & another v Ministry of Interior and Coordination of National Government & 4 others; Kipaa (Interested Party) (Petition E018 of 2025) [2025] KEELRC 1563 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1563/eng@2025-05-29

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