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ELRCDismissed· [2025] KEELRC 2106 (KLR)

Mwalah v Kenya Literature Bureau & 6 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E063 of 2025) [2025] KEELRC 2106 (KLR)

Employment and Labour Relations Court
17 July 2025
7,775 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to suspend the acting Managing Director of Kenya Literature Bureau, saying continuity of public service outweighed the challenge until the full case is heard.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Wasilwa J) on a Notice of Motion dated 14th April 2025 in which the Petitioner sought to suspend and/or stay the appointment of the 6th Respondent, Paul Kibet, as Acting Managing Director of the Kenya Literature Bureau, to restrain him from performing those duties, and to compel the appointment of an Acting Managing Director from among the Bureau's qualifying directors. The Petitioner argued the 6th Respondent, having retired in March 2024 upon attaining 60 years, was not a public officer and thus ineligible for acting appointment under the Career Guidelines 2018, the PSC Act and Regulations and a 2023 Head of Public Service circular. The respondents countered that the 6th Respondent remained a public officer on a lawful contract extension under Section 80(2) of the PSC Act; the 2nd, 3rd and 4th Respondents raised objections on jurisdiction and locus standi, citing the employer-employee limits of the court's jurisdiction; and the Interested Party (PSC) supported the application, relying on authority that acting appointments are restricted to existing employees. The 6th Respondent invoked Section 8 of the KLB Act and estoppel. Applying the Giella v Cassman Brown principles, the court held that the balance of convenience tilted against interim relief given the Bureau's public mandate relating to school children and the need to avoid a management lacuna, noting the six-month acting term would lapse on 20th September 2025 and that the interim orders mirrored the main petition. The court declined all orders sought, directed the parties to proceed and conclude the petition, and awarded costs in the petition.

Key legal issues

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01

Whether to grant interim orders suspending/staying the 6th Respondent's appointment as Acting Managing Director

Holding

Application dismissed; balance of convenience favoured allowing the 6th Respondent to continue pending full hearing of the petition

Reasoning

The court applied the Giella v Cassman Brown principles. It noted the 6th Respondent was appointed for six months expiring 20th September 2025, that the orders sought mirrored the main petition's prayers, and that the 1st Respondent is a public entity whose mandate relates to the lives of school children. To avoid a lacuna in management of the Bureau, the court held the balance of convenience lay in declining interim relief and directing parties to conclude the petition.

p. 15
02

Jurisdiction and locus standi objections by the 2nd, 3rd and 4th Respondents

Holding

The court did not expressly determine the jurisdiction and locus standi objections, instead directing parties to proceed to the full petition

Reasoning

The 2nd, 3rd and 4th Respondents argued the court lacked jurisdiction absent an employer-employee relationship and that the Petitioner was a bystander without locus standi, citing Owners of the Motor Vessel 'Lillian S' and Anarita Karimi Njeru. The 6th Respondent likewise challenged standing. The court recorded these submissions but resolved the motion on the balance of convenience, leaving the objections for determination at the hearing of the petition.

p. 15

Legal principles established

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  • Interim injunction applications are governed by the Giella v Cassman Brown principles of prima facie case, irreparable harm and balance of convenience

Court orders

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  1. 1.Application dismissed; no orders as prayed
  2. 2.Parties directed to proceed and conclude the entire petition
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2); Article 165; Article 232; Article 233; Article 234(2) and (5); Article 252(1)(d); Article 258(1); Article 260; Articles 10, 19, 21, 27, 73
  • Employment and Labour Relations Court ActSection 12
  • Public Service Commission ActSections 34, 80(1), 80(2)
  • Kenya Literature Bureau ActSection 8
  • State Corporations ActSection 5(3)
  • Public Officer Ethics ActSection 2
  • Public Service Commission RegulationsRegulation 70(1)(a)
  • Mwongozo Code of Governance for State Corporations (Executive Order No. 7 of 2015)Attachment I
  • Human Resource Policies and Procedures Manual for the Public Service, May 2016Section C.14(1)
  • Career Progression Guidelines, 2018not specified
  • Chief of Staff and Head of Public Service Circular Ref. No. OP/CAB.9/1A dated 1st February 2023not specified

Cases cited (10)

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; CA No. 77 of 2012
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mbuthia v Jimba Credit Corporation Ltd
    [1988] KLR 1
  • Anarita Karimi Njeru v Republic
    [1979] KECA 12 [KLR]
  • Okiya Omtatah v Joseph Kinyua & another
    [2018] KEELRC 1657 [KLR]
  • Okiya Omtatah v KRA Board & Others
    [2018] KEELRC 1689
  • Gikenyi B & another v Nakhumicha & 2 others; Amoth & 58 others [Interested Party]
    [Petition E134 & E124 of 2023 [Consolidated]] [2023] KEELRC 3222 [KLR]
  • Barasa v Public Service Board County Government of Trans-Nzoia & 4 others
    [2024] KEELRC 13399 [KLR]
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil [Kenya] Ltd
    [1989] KLR 1
Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act (jurisdiction contested by respondents)

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, "Mwalah v Kenya Literature Bureau & 6 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E063 of 2025) [2025] KEELRC 2106 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2106/eng@2025-07-17

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