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ELRCPartially AllowedPetition dated 23rd January 2024 (ELRC, Nyeri)

Ngunju & 16 others v Kenya Forest Service & another (Employment and Labour Relations Petition E003 of 2024) [2025] KEELRC 2058 (KLR)

Employment and Labour Relations Court
11 July 2025
2,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employers must follow their own HR promotion policies before hiring externally, though affected staff won no damages here.

What this practically means

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Executive summary

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The petitioners, employees of the 1st respondent (Kenya Forest Service) holding ranks of Range Constables and Corporals, petitioned alleging that the 1st respondent's advertisement of 28th February 2023 recruiting Inspector Cadets externally, without first advertising internally, violated their rights under Articles 27, 41, 47 and 10 of the Constitution and contrary to section 21(5)C(iii) of the KFS Career Progression Guidelines and section 2.16 of the KFS HR Policy Manual. They sought declarations, compensation, a mandatory injunction compelling their promotion to Inspector Cadet, exemplary and general damages. The respondents denied the allegations, asserting internal recruitment had been exhausted in April 2022 before external advertisement. The court framed four issues and, on the evidence, found the petitioners had not produced the operative provisions they relied on (sections 2.16 and 21(5)(iii)), so could not prove their existence. However, section 2.34 of the HR Policy Manual requires priority to internal recruitment; the respondents produced no evidence of having done so. The court therefore held the 1st respondent violated its own HR Policy and the petitioners' right to fair labour practices under Article 41(1). The age-discrimination claim failed as the advert contained no age limit. Damages and the mandatory injunction to promote were refused for lack of proof of automatic promotion; punitive damages were also refused. Judgment was entered for the petitioners with a declaration of violation, and the 1st respondent was condemned to pay costs plus interest.

Questions the Court framed

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

  1. 1.Whether the advertisement violated the respondent's HR Policy and Procedure Manual and the KFS Career Progression.
  2. 2.Whether the advertisement discriminated against the petitioners on account of age or at all.
  3. 3.Whether the 1st respondent violated the Constitution and the petitioners' rights to fair labour practices and fair administrative action.
  4. 4.Whether the petitioners are entitled to the reliefs sought.

Key legal issues

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01

Whether the 1st respondent violated its own HR Policy by recruiting externally without internal advertisement

Holding

Proved - the respondent failed to prove it exhausted internal recruitment as required by section 2.34 of the HR Policy Manual

Reasoning

Section 2.34 of the HR Policy Manual gives priority to internal recruitment through internal advertisement when filling vacancies. The respondent claimed it had done an internal advert in April 2022, but tendered no evidence to support that. The court held that proof of compliance was easy to produce, and its absence meant the petitioners proved the violation on a balance of probability.

p. 4
02

Whether the advert discriminated against the petitioners on account of age

Holding

Not proved - the advert contained no age limit and no evidence of exclusion was adduced

Reasoning

The petitioners alleged the Inspector Cadet advert excluded them on account of age. The court examined the full advert reproduced in the judgment and found no age limit for candidates. Without evidence that the petitioners were excluded by reason of age or at all, the discrimination claim failed on a balance of probability.

p. 5
03

Whether the petitioners' right to fair labour practices was violated

Holding

Yes - failure to give serving qualified officers priority for promotion under section 2.34 violated Article 41(1)

Reasoning

The court held that an employer must strictly follow the procedure in its own HR Policy Manual for filling vacancies, and breach of that express procedure constitutes unfair labour practices, giving affected employees a cause of action for a declaration that their right to fair labour practices under Article 41 is violated.

p. 6
04

Entitlement to damages and promotion reliefs

Holding

Refused - declaration only, since no proof of automatic promotion or oppressive conduct

Reasoning

Although the declaration succeeded, the court declined damages and a mandatory injunction because there was no evidence the petitioners would have been automatically promoted had internal recruitment occurred; section 2.34 involves other promotion factors. Exemplary and punitive damages failed for want of evidence of high-handed conduct.

p. 6

Legal principles established

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  • Where an employer's HR policy prescribes a procedure for filling vacancies (priority to internal recruitment), it must be strictly followed, and breach amounts to unfair labour practices actionable by affected employees.

Court orders

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  1. 1.A declaration that the 1st respondent has violated petitioners' rights to fair labour practices under Article 41(1) of the Constitution by failing to advertise the position of Inspector Cadet internally before seeking to recruit externally.
  2. 2.The 1st respondent is condemned to pay the petitioners costs of the suit plus interests.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 27, 41, 47 and 10 of the Constitution of Kenya, 2010 (ELRC constitutional petition)

Relief refused

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Compensation/damages for the declared violations

No evidence that the petitioners would have been automatically promoted upon internal recruitment

p. 6

Mandatory injunction compelling promotion to Inspector Cadet

No automatic promotion entitlement; other factors beyond qualifications and length of service apply

p. 6

Exemplary/vindicatory, aggravated and/or punitive damages and general damages

No evidence of high-handed, arbitrary or oppressive conduct

p. 6

Declaration of age-based discrimination

The advert contained no age limit and no evidence of exclusion on account of age

p. 5

Costs

The 1st respondent is condemned to pay the petitioners costs of the suit plus interests.

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.

Where the employer breaches the express procedure in its HR Policy and Procedure Manual, that amounts to unfair labour practices and the victims of such violation can sue the employer for declaration that their right to fair labour practices has been violated.
p. 6Breach of internal HR policy as unfair labour practice
I find that the 1st respondent has not proved that it conducted internal recruitment as required in section 2.34 of the HR Policy Manual before advertising to recruit externally.
p. 4Failure to prove internal recruitment
A declaration that the 1st respondent has violated petitioners' rights to fair labour practices under Article 41(1) of the Constitution by failing to advertise the position of Inspector Cadet internally before seeking to recruit externally.
p. 6Final orders - declaration granted
The 1st respondent is condemned to pay the petitioners costs of the suit plus interests.
p. 6Final orders - costs

Issues in the judgment

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minor

The judgment states the advertisement date inconsistently as 28th February 2023 in the reliefs/pleadings and 28th January 2023 in the court's own framing of facts

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, "Ngunju & 16 others v Kenya Forest Service & another (Employment and Labour Relations Petition E003 of 2024) [2025] KEELRC 2058 (KLR)", Case Analysis (2025). Petition dated 23rd January 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2058/eng@2025-07-11

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