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ELRCDismissedNot stated in judgment (Amended Notice of Motion dated 28th April 2025)

Dida v National Cohesion and Integration Commission; Attorney General & another (Interested Parties) (Petition E046 of 2025) [2025] KEELRC 2657 (KLR)

Employment and Labour Relations Court
1 October 2025
HWHELLEN WASILWA
3,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to suspend an already-made public appointment, ruling the challenger showed no prima facie case or harm, though the full case continues.

What this practically means

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Executive summary

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The Petitioner, an unsuccessful applicant for the position of Commission Secretary/CEO of the National Cohesion and Integration Commission, filed an Amended Notice of Motion dated 28th April 2025 seeking conservatory orders suspending the appointment of the 2nd Interested Party, Dr. Daniel Mutegi Giti, and restraining him from performing the duties of that office pending the hearing of the Petition. The Petitioner argued that the recruitment was opaque, that the acting CEO Harrison Gikonyo Kariuki was shortlisted while handling applications in conflict of interest, that public participation was not accorded, and that the process violated the Constitution, the NCIC Act and the Public Service (Values and Principles) Act. The Respondent, through a replying affidavit of its Chairperson Rev. Dr. Samuel Kobia, maintained the recruitment was open, competitive and merit-based; that the Petitioner did not meet the minimum qualifications, including eight years' senior management experience; that the longlist and shortlist were published on 25th March 2025; and that recruitment is governed by Article 232, not public participation. The court considered the three issues framed and, without determining the substantive disputes, held that the applicant had not established a prima facie case nor demonstrated the harm he would suffer if the Interested Party remained in office, the appointment having already taken effect. The court declined to grant conservatory orders, dismissed the application, directed the parties to proceed with the main petition, and awarded costs in the petition. Judgment was delivered virtually at Nairobi on 1st October 2025 by Hellen Wasilwa, Judge.

Questions the Court framed

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

  1. 1.Whether the process of recruitment of the Commission Secretary/CEO was done in a lawful manner and was transparent, competitive, procedurally sound and accountable
  2. 2.Whether the process was exempt from public participation and whether the public was accorded a reasonable opportunity to participate
  3. 3.Whether the Petitioner is entitled to the conservatory reliefs sought

Key legal issues

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01

Whether the Petitioner met the threshold for conservatory orders

Holding

He did not; no prima facie case or demonstrated harm was established, so the application was dismissed

Reasoning

The court noted the appointment had already taken place and the 2nd Interested Party had been sworn in and assumed office. The applicant failed to show the harm he would suffer if the interested party stayed in office pending determination of the petition. The contested issues of transparency and propriety of the recruitment were matters for the main petition, not for interim determination, so no conservatory orders were warranted.

p. 8
02

Whether the recruitment process violated constitutional principles of transparency and public participation

Holding

Not determined at this interlocutory stage; reserved for the main petition

Reasoning

The parties disputed whether Article 232 (merit and fair competition) rather than Article 10 public participation governed the recruitment, and whether the process was transparent. The court did not decide these substantive questions on the application, holding they are issues to be canvassed and determined in the main petition.

p. 8

Legal principles established

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  • Conservatory orders will not issue where the applicant has not established a prima facie case and demonstrated harm, particularly where the appointment sought to be suspended has already taken effect

Court orders

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  1. 1.Conservatory orders suspending the appointment of the 2nd Interested Party as Secretary/CEO refused
  2. 2.Application dismissed
  3. 3.Parties to proceed with the main petition
  4. 4.Costs in the petition

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; petition alleging violation of the Constitution (Articles 10, 232, Chapter 6) and the National Cohesion and Integration Act and Public Service (Values and Principles) Act, 2015

Relief refused

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Conservatory order suspending the appointment of the 2nd Interested Party as Secretary/CEO

Applicant failed to establish a prima facie case or demonstrate harm; appointment had already taken place

p. 8

Conservatory order restraining the 2nd Interested Party from carrying out duties as Secretary/CEO

Not demonstrated harm; issues reserved for the main petition

p. 8

Costs

Costs in the petition.

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 applicant has not demonstrated the harm he stands to sufier if the interested party stays in ofice pending the hearing and determination of this petition.
p. 8prima facie case and harm - conservatory orders
I decline to grant any conservatory orders and dismiss the application accordingly. The parties to proceed with the main petition. Costs in the petition.
p. 8final orders / disposition
The applicant seeks to suspend an appointment which has already taken place and the 2nd interested party already sworn in and taken possession of the ofice.
p. 8futility of suspending a completed appointment

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, "Dida v National Cohesion and Integration Commission; Attorney General & another (Interested Parties) (Petition E046 of 2025) [2025] KEELRC 2657 (KLR)", Case Analysis (2025). Not stated in judgment (Amended Notice of Motion dated 28th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2657/eng@2025-10-01

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