Vincent Omao Mariita v Nyamira Water and Sanitation Company Limited & 2 others

AND IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS & FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES, 2013 BETWEEN VINCENT OMAO....................................................PETITIONER MARIITA VERSUS NYAMIRA WATER AND SANITATION COMPANY LIMITED.......................................................1ST RESPONDENT BOARD OF DIRECTORS OF NYAMIRA WATER AND SANITATION COMPANY LIMITED......................................................2ND RESPONDENT NYAMIRA COUNTY GOVERNMENT................ .........3RD RESPONDENT JUDGMENT 1. The Petitioner instituted this suit via a Petition dated 18th May 2026 alleging violation of Articles 10, 232, 201, 207, 43, 22 and 258 of the Constitution. He contends that through an advert in the Daily Nation and on the 1st Respondent’s website, around February 2026 the 2nd Respondent declared vacancies for the positions of Managing Director, Commercial and Finance Manager, and Technical Services Manager at the 1st Respondent. Page 2 of 16

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2. The Petitioner avers that, in undertaking the recruitment, the Respondents unlawfully and arbitrarily restructured departments, created additional positions and altered the organisational structure. In particular, he contends that the recruitment process contravened the Water Act and the Corporate Governance Guidelines in the water sector, having been undertaken without an approved organogram or Human Resource Manual. He further contends that the recruitment was irrational, given the financial constraints facing the 1st Respondent. He also maintains that the Respondents failed to undertake public participation. Consequently, he urges the Court to prevent the expenditure of public funds on what he considers irregular appointments. 3. As concerns the manner of Constitutional and statutory contravention, the Petitioner avers that the Respondents have contravened: Article 10 of the Constitution by failing to uphold transparency, accountability and public participation; Article 232 by failing to ensure fair competition, merit-based appointments, transparency and accountability; Articles 201 and 207 by exposing public funds to misuse and potential waste; and Article 43 by jeopardizing efficient, sustainable Page 3 of 16

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and accountable provision of water services to the residents of Nyamira County. Consequently, he seeks the following reliefs: (1) A declaration that the advertisement, recruitment, vetting and intended appointment of the Managing Director, Commercial and Finance Manager, and Technical Services Manager is unconstitutional, illegal, null and void. (2) A declaration that the Respondents have violated Articles 10, 43, 201, 207 and 232 of the Constitution. (3) An order of certiorari quashing the advertisement issued in February 2026. (4) A permanent injunction restraining the Respondents from proceeding with the recruitment process. (5) An order compelling the Respondents to develop and implement a lawful organizational structure and Human Resource framework. (6) An order of mandamus against the Respondents jointly and/or severally compelling them to submit a report/ report of the ad hoc committee for recruitment and selection for the successful candidates from the Page 4 of 16

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interviews, letters of regret to unsuccessful candidates and evidence of final results. (7) An order directing the Respondents to conduct meaningful public participation before undertaking any recruitment. (8) An order against the 1st and 2nd Respondents cancelling the advertisement of the positions within 14 days. (9) An order restraining the Respondents from expending public funds on the impugned positions. (10) Costs of the Petition to be borne by the Respondents. (11) Any other relief the court deems appropriate. 4. The 1st and 2nd Respondents oppose the Petition through a Replying Affidavit sworn by Engineer Edward Magare, the Acting Chief Executive Officer of the 1st Respondent. The deponent avers that the 1st Respondent is a limited liability company duly incorporated under Kenyan law and that its affairs are managed by the 2nd Respondent in accordance with the Constitution, applicable laws. The 1st the Companies Act and other and 2nd Respondents contend that Page 5 of 16

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the recruitment exercise was authorised by a resolution of the 1st Respondent’s Board made on 24th March 2026 and was undertaken in the public interest to facilitate optimal service delivery to the residents of Nyamira County. They further contend that granting the orders sought would prejudice both the Respondents and the residents of Nyamira County by impeding the proper functioning of the 1st Respondent. The 1st and 2nd Respondents further contend that the Petitioner has not demonstrated any violation of his right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act. In support of that position, they rely on Geoffrey Oduor Sijeny v Kenyatta University [2018] KEHC 8913 (KLR), for the proposition that a declaration of violation of the right to fair administrative action cannot issue without proof of the alleged infringement. They therefore urge the Court to dismiss the Petition with costs, contending that the Petitioner will suffer no prejudice if the reliefs sought are declined. 5. The 3rd and 4th Respondents similarly oppose the Petition through a Replying Affidavit sworn by Alice Manoti. The Page 6 of 16

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averments in that affidavit substantially mirror those contained in the affidavit filed on behalf of the 1st and 2nd Respondents. 6. On its part the 5th Respondent filed grounds of opposition dated 25th May 2026. It contends that the composition of the 1st Respondent’s Board is governed by Regulation 11(2)(b) of the Water Services Regulations, 2025, which requires representation of stakeholders, including consumers, professionals, the County Government and community-based organisations. It therefore maintains that the composition of the Board, in itself, incorporates public participation in decision-making on matters affecting the residents of Nyamira County. The 5th Respondent further contends that the Petitioner has not demonstrated that the residents were excluded from, or otherwise not engaged in, the recruitment of the 1st Respondent’s executive staff. 7. The 5th Respondent further contends that the petition does not demonstrate how the advertisement violated or deviated from the minimum qualifications set out under Regulation 12(3) of the Water Services Regulations, 2025. With regard Page 7 of 16

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to the Human Resource Policy Manual, Organogram, Career Guidelines and Staff Establishment the 5th Respondent asserts that they cannot be developed in the absence of senior management. 8. As regards the 1st Respondent’s financial position, the 5th Respondent states that no audited financial statements have been placed before the Court to demonstrate the alleged inability of the 1st Respondent to meet its liabilities. In view of the foregoing, the 5th Respondent urges the Court to dismiss the Petition on the ground that it fails to meet the constitutional threshold established in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272. 9. The Petition was canvassed by way of written submissions. Petitioner’s Submissions 10. In support of the Petition the Petitioner identifies the following issues for determination: (a) Whether this Honourable Court has jurisdiction to hear and determine the Petition; (b) Whether the Petitioner constitutional standing; Page 8 of 16 has the requisite

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(c) Whether the Respondents were bound by the Constitution, the Water Act, 2016, Water (Services) Regulations and the Corporate Governance Guidelines; (d) Whether the recruitment process violated the Constitution and statute; (e) Whether the recruitment should be declared unconstitutional and quashed; and (f) Whether the Petitioner is entitled to the reliefs sought. 11. On Jurisdiction, the Petitioner submits that this Court has jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. Relying on Moi Teaching and Referral Hospital & 3 others v Dr. Magare Gikenyi & 76 others (SC Petition No. E030 as consolidated with E033 of 2025) (Judgment) (3rd July, 2026), the Petitioner submits that the Court’s jurisdiction extends to pre-employment disputes concerning recruitment and appointment to public office. The Petitioner further relies on International Centre for Policy and Conflict v Attorney General & others [2013] eKLR Page 9 of 16

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and Okiya Omtatah Okoiti v Joseph Kinyua & others [2018] eKLR, and submits that the present dispute, which concerns recruitment to senior management positions in a public water utility, falls within the Court’s jurisdiction. 12. On constitutional standing, the Petitioner submits that he has standing under Articles 22 and 258 of the Constitution to institute proceedings in the public interest. He contends that he is a resident of Nyamira and a consumer of the Respondents’ services and has instituted the Petition not in pursuit of a private employment interest, but to enforce constitutional principles and promote accountability in the management of a public utility. With respect to whether the Respondents are bound by the Constitution, the Water Act and the Water (Services) Regulations and the Corporate Governance Guidelines, the Petitioner submits that they are, by virtue of the 1st Respondent’s status as a public water service provider. He maintains that the recruitment and restructuring violated Articles 10 and 232 of the Constitution by disregarding transparency, accountability, public participation, fair competition, merit and prudent use of Page 10 of 16

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public resources. The Petitioner further submits that the Respondents acted contrary to Articles 201 and 207 by exposing public resources to unjustified expenditure and undermined Article 43 by jeopardising the effective provision of water services. He also reiterates that the Respondents failed to comply with the Water Act, the Corporate Governance Guidelines in the Water Sector and their governance obligations under the Companies Act, 2015. 13. As to whether the recruitment process violated the Constitution and statute, the Petitioner submits that it did. He contends that the restructuring of departments and creation of additional offices preceding the recruitment altered the organisational structure without public participation or evidence of the requisite approvals. Relying on Robert N. Gakuru & others v Governor, Kiambu County & 3 others [2014] eKLR, the Petitioner submits that public participation is a constitutional imperative and not a cosmetic exercise. He further submits that Article 232 required the Respondents to demonstrate the need for the positions, their approval and budgetary provision, as well as Page 11 of 16

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compliance with the applicable governance framework. The Petitioner contends that, in the absence of a lawfully approved organisational structure, the recruitment could not satisfy the constitutional requirements of fair competition, merit, accountability and transparency. 14. Turning to the question as whether the recruitment should be declared unconstitutional, The Petitioner submits that the recruitment is null and void ab initio because it was founded on a restructuring process undertaken in violation of the Constitution, the Water Act, the Companies Act and the applicable Corporate Governance Guidelines. He relies on Judicial Service another [2015] Commission eKLR for v Mbalu the Mutava proposition & that administrative action is subject to constitutional scrutiny and must be lawful, reasonable and procedurally fair. He further relies on Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR for the principle that public authorities must exercise statutory powers within the confines of the law. The Petitioner therefore submits that the advertisement and all subsequent Page 12 of 16

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recruitment processes ought to be quashed by an order of certiorari and permanently restrained by injunction. 15. Lastly on entitlement to the reliefs sought, the Petitioner submits that he has established, on a balance of probabilities, violations of Articles 10, 43, 47, 201 and 232 of the Constitution and non-compliance with the Water Act, the Companies Act and the Corporate Governance Guidelines. He relies on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, submitting that the Court has a constitutional obligation to safeguard constitutional values where public authorities act outside their lawful mandate. The Petitioner consequently urges the Court to grant the reliefs sought. 1st - 4th Respondents’ Submissions 16. The 1st - 4th Respondents submit that the Petitioner has not adduced any evidence in his supporting affidavit substantiating the alleged constitutional breaches. They contend that the burden of proof rests upon the party who alleges and rely on Ndiritu v Ropkoi & another [2004] eKLR, where the Court of Appeal held that the legal burden Page 13 of 16

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of proof lies upon a party who invokes the aid of the law. The 1st - 4th Respondents further submit that the Petitioner has not demonstrated any violation of his right to fair administrative action under Article 47 of the Constitution. Relying on Geoffrey Oduor Sijeny v Kenyatta University, [2018] KEHC 8913 (KLR), they submit that a party alleging violation of the right to fair administrative action must demonstrate that the standards under Article 47(1) of the Constitution, as amplified by section 4 of the Fair Administrative Action Act, were absent or violated in the impugned administrative action. They maintain that the Petition is prejudicial to the effective discharge of the 1st and 2nd Respondents’ mandates and is not in the public interest, as it seeks to curtail their operations and service delivery. They contend that the advertisement of the vacant positions in a local daily and on the 1st Respondent’s, website constituted an act of transparency and accountability and afforded qualified Kenyans an opportunity to apply. They therefore submit that the recruitment process complied with the constitutional and statutory requirements and ought to be allowed to proceed. In conclusion they urge the court to Page 14 of 16

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dismiss the Petition with costs for being an abuse of the court process. They rely on Ndiritu v Ropkoi & another [2004] eKLR and Geoffrey Oduor Sijeny v Kenyatta University, Petition No. 292 of 2017 in support of their position. Disposition 17. The sole issue for determination is whether the recruitment process the Respondents have embarked on complies with the law. Under the law any party alleging violation of the right to fair administrative action must demonstrate that the provisions of Article 47(1) of the Constitution, further amplified by section 4 of the Fair Administrative Action Act, were either entirely absent or were violated in the impugned administrative action. There must be precision as to the actions that breach this constitutional standard reinforced in statute. The Court is of the view that the advertisement of the vacant positions in a local daily newspaper with national and wide circulation and on the 1st Respondent’s, website constituted an act of transparency and accountability. In my considered view, the advertisement issued in the press and online afforded all Page 15 of 16

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qualified Kenyans an opportunity to apply. The recruitment process in my finding, complied with the constitutional and statutory requirements and ought to be allowed to proceed. In the final result I dismiss the Petition albeit with no order as to costs. The recruitment may proceed to its logical conclusion with liberty to apply. It is so ordered. Dated and delivered at Kisii this 28th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 16 of 16

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