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ELRCDismissedNot stated in the judgment· [2025] KEELRC 2101 (KLR)

Mohammed v National Mining Corporation & 2 others (Petition E090 of 2025) [2025] KEELRC 2101 (KLR)

Employment and Labour Relations Court
17 July 2025
BOByram Ongaya
5,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear job recruitment disputes, but ruled that topping interviews doesn't guarantee appointment when the hiring authority has lawful discretion.

What this practically means

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Executive summary

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The petitioner, who emerged top in interviews for the position of chief executive officer of the 1st respondent state corporation, petitioned against the 2nd respondent's (Cabinet Secretary's) appointment of the interested party, who had been ranked among the top three candidates. He sought declarations of violation of Articles 27, 41, 47 and 232, prohibition, certiorari and mandamus compelling his own appointment. The respondents and the interested party filed a preliminary objection asserting want of jurisdiction for lack of an employer-employee relationship, relying on the Court of Appeal decision in Moi Teaching and Referral Hospital v Gikenyi. The Court dismissed the objection, holding that pre-employment recruitment and appointment disputes fall within the ELRC's jurisdiction because the Employment Act and Labour Relations Act deem applicants for employment to be employees, and that public interest litigation within the ELRC's subject matter competence cannot be defeated for want of an employment relationship. On the merits, the Court found that the applicable Head of Public Service circular required the Board to recommend the best three candidates, from whom the Cabinet Secretary could lawfully appoint any one. The petitioner's top score did not entitle him to automatic appointment, and he adduced no evidence of irrelevant considerations or arbitrary conduct. The respondents discharged the evidential burden under section 5(7) of the Employment Act. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the ELRC has jurisdiction over a pre-employment recruitment dispute in the absence of an employer-employee relationship

Holding

The Court has jurisdiction; the Employment Act and Labour Relations Act deem applicants for employment to be employees, bringing pre-employment disputes within section 12 of the ELRC Act

Reasoning

The Court distinguished Moi Teaching and Referral Hospital v Gikenyi, reading it as conferring concurrent jurisdiction on the High Court rather than ousting the ELRC. Section 5 of the Labour Relations Act and section 5 of the Employment Act define employees to include persons seeking employment, imposing non-discrimination obligations on prospective employers. ILO Convention No. 111 also mandates national policy against discrimination in recruitment, anchoring pre-employment disputes within the ELRC's jurisdiction.

p. 9
02

Whether the appointment of the interested party rather than the top-scored petitioner violated Articles 27, 41, 47 and 232 of the Constitution

Holding

No violation established; the Cabinet Secretary exercised a lawful discretion under the applicable circular to appoint one of three recommended candidates

Reasoning

The circular required the best three candidates to be recommended, giving the Cabinet Secretary discretion to appoint any one of them. The petitioner, though top-scored, said nothing of the overriding criteria in Article 232(1)(h) and (i). The petitioner produced no evidence of irrelevant considerations or denial of information. The respondents discharged the evidential burden under section 5(7) of the Employment Act on a balance of probability, and the decision met Wednesbury reasonableness.

p. 11

Legal principles established

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  • Pre-employment recruitment, selection and appointment disputes fall within the jurisdiction of the ELRC; a prospective employee is statutorily deemed an employee and need not prove an employer-employee relationship
  • Strategic or public interest litigation within the ELRC's subject matter jurisdiction cannot be defeated for want of an employer-employee relationship
  • Under the State corporations CEO recruitment circular, the appointing authority may appoint any one of the three competitively recommended candidates; top performance at interview alone does not create a right to appointment

Court orders

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  1. 1.The notice of preliminary objection dated 09.06.2025 is found unmerited and is dismissed
  2. 2.The petition is dismissed
  3. 3.Each party to bear own costs of the petition
Jurisdiction invoked
Article 162(2)(a) and 165(5)(b) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohammed v National Mining Corporation & 2 others (Petition E090 of 2025) [2025] KEELRC 2101 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2101/eng@2025-07-17

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