Union of Kenya Civil Servants v Attorney General & 2 others; Public Service Commission & 10 others (Interested Parties) (Petition E026 of 2025) [2025] KEELRC 1618 (KLR)
The bottom line
#Kenya's Employment Court found 20 State Counsels were unfairly skipped for promotion, but ordered a fresh open competition rather than automatic promotions or compensation.
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 Respondents' exclusion of the 20 Senior State Counsels from promotion to Principal State Counsel (CSG7) violated Articles 10, 20, 21, 27, 35, 41, 47, 232 and 236 of the Constitution
- 2.Whether the exclusion was discriminatory
- 3.Whether the 20 Senior State Counsels were entitled to promotion and attendant benefits
- 4.Whether a legitimate expectation of promotion existed notwithstanding limited vacancies
- 5.Whether compensation/damages should be awarded for the established violation
Key legal issues
#Discrimination in promotion of the 20 Senior State Counsels
Violation of Article 27 established; the Respondents' process was not shown to have been undertaken through exhibited review or scoring, disregarding the Public Service Commission Act, 2017
The respondents conceded the position was competitive and that a comprehensive review of qualifications was adopted. However, no report of the alleged review, scoring, or assessment was exhibited. The criteria under section 36 of the Public Service Commission Act, 2017 applied but was not shown to have been invoked. The selective promotion of part of a cohort with identical qualifications, without demonstrable merit-based criteria, amounted to discrimination contrary to Article 27.
Legitimate expectation versus vacancies and open competition
Legitimate expectation exists but does not displace the constitutional and statutory requirement of open competitive recruitment/selection
The petitioner misconceived the promotion as a common-cadre promotion not requiring advertisement. The cohort had already exhausted the two entry grades of the common establishment. While serving officers enjoy a legitimate expectation under career guidelines, the Constitution and section 36(3) and (4) of the Public Service Commission Act, 2017 mandate open competitive selection; serving officers benefit from priority only in the sense of readily possessing prescribed qualifications.
Remedy: compensation for established violation
Compensation declined; declarations and a restraining order deemed sufficient given the continuing employment relationship and proportionality
Although discrimination and other Bill of Rights violations were established, the parties continue in the employment relationship. The Court held that declarations of rights and obligations meet the full ends of justice, and compensation was declined in the interests of proportionality in the immediate and long run.
Legal principles established
#- Promotions in the public service must follow the criteria in section 36 of the Public Service Commission Act, 2017 and cannot be made through an undisclosed, unexhibited process
- Serving officers have a legitimate expectation to be promoted per applicable guidelines, but appointment and promotion require open competition under the Constitution and the Public Service Commission Act, 2017
- In a common cadre establishment only the first two entry grades may be promoted without advertisement; beyond that vacancies must be advertised
Court orders
#- 1.Declaration that the Respondents' action and omission in excluding the 20 Senior State Counsel from promotion to Principal State Counsel (CSG7) violates Articles 10, 20, 21, 27, 35, 41, 47, 232 and 236 of the Constitution and is unconstitutional, null and void
- 2.Declaration that the exclusion is discriminatory and violates the 20 Senior State Counsels' constitutional rights
- 3.Declaration that the 20 Senior State Counsel are entitled to promotion from Senior State Counsel (CSG8) to Principal State Counsel (CSG7) in an open competitive process in accordance with the Constitution, Public Service Commission Act and regulations and policies
- 4.Order restraining the Respondents from terminating, suspending, or altering the employment status of the Senior State Counsels or taking adverse action against them on account of the petition
- 5.Direction that this judgment be read together with the judgment delivered the same day in Dr. Magare Gikenyi B & 2 others v Attorney General & 4 others; Wachira Njeri Mwangi & 226 other interested parties, ELRC Petition E202 of 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and constitutional (Bill of Rights) claims; not expressly cited
Relief refused
#Immediate promotion of the 20 Senior State Counsels to Principal State Counsel (CSG7)
Promotion must be via an open competitive process, not automatic promotion
Award of damages/compensation for discrimination
Parties remain in the employment relationship; declarations suffice in the interests of proportionality
Written reasons/justifications for the exclusion
Not granted in the final orders
Costs
Each party will bear own costs of the petition (parties are in a recognition and collective agreement).
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 Court returns that the petitioners have established that indeed the right of equality before the law and freedom from discrimination per Article 27 of the Constitution was violated.
the Constitution and the Public Service Commission Act, 2017 impose the criteria for appointment and promotion entailing open competition.
The declaration that the Respondents’ action and omission in excluding the 20 Senior State Counsel from promotion to the position of Principal State Counsel (CSG7) violates Article 10,20,21,27,35,41,47,232, and 236 of the Constitution of Kenya 2010 and are, therefore unconstitutional, null and void.
The order hereby issued restraining the Respondents, whether by themselves, their agents, servants, or any other persons acting under their authority or supervision, from terminating, suspending, or otherwise altering the employment status of the Senior State Counsels
award of compensation for the violation of rights is declined in the interests of proportionality in the outcome of the instant judgment in the immediate and long run.
Issues in the judgment
#Judgment switches narrative voice in opening ('I filed the petition dated 21.02.2025'), apparently a typographical error for 'The petitioner filed'
Case number of the instant petition is not stated anywhere in the judgment
Inconsistent grade references ('Principal State Counsel (CS7)' vs '(CSG7)') and typographical errors ('2o members', 'efiect')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of Kenya Civil Servants v Attorney General & 2 others; Public Service Commission & 10 others (Interested Parties) (Petition E026 of 2025) [2025] KEELRC 1618 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1618/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.