https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1339

Agwenyi v Parliamentary Service Commission (Petition E244 of 2025) [2026] KEELRC 1339 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1339 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E244 of 2025 JK Gakeri, J May 19, 2026 Between Zachary Gichana Agwenyi Petitioner and Parliamentary Service Commission Respondent Judgment 1.The Petition herein concerns an advertisement placed by the Respondent in the newspaper on 10th November 2025, for the position of Chief Sergeant-At-Arm. The bone of contention is that the requirements are skewed to favour a particular set of persons in contravention of a free, fair and transparent process; yet Articles 54-56 of the Constitution mandate the Respondent to consider persons with disability, youth, minorities and marginalized groups. That the advertisement locked out other members of security organs as it placed emphasis on military and the police. He contended that the position of Chief Sergeant-At-Arm was not a security organ within the Kenyan constitution; and that requiring the holder to have attained the highest attainable rank in the police hierarchy, is not only discernible but will in future cause a huge disparity for one to be appointed to such position while serving in other security organs. The said action was termed as erroneous and ill-matched to favour military personnel to the disadvantage of the members of the police service. 2.The Respondent’s actions were not only considered to be in violation of the constitution but that they also erode the strive to achieve the highest standards of professionalism, discipline and integrity. The Petitioner avers that the serving Sergeant At Arms was a career civil servant in the Provisional Administration was due for retire. He contended that the position of Major in the army was not equivalent to that of a Senior Assistant Inspector of Police even in terms of salary structure. The Petitioner prays for orders that:a.An order of certiorari be and is hereby issued, calling into this Court, and quashing the advertisement dated10th November 2025, for the position of Chief Sergeant-At-Arm as unlawful, unconstitutional and offending the employment and labour practices.b.A declaration be and hereby issued that the military, the National police service, the National intelligence Service, the Kenya prisons Service, the Kenya Wildlife Service, the Kenya Forest Service and The National Youth Service are part and parcel of the disciplined forces.c.A declaration that the purported recruitment position of Chief Sergeant-At-Arm by the Respondent is unconstitutional, ultra vires null and void ab initio for violating Article 54,55 and 56 of the Constitution.d.An order of prohibition be and hereby issued restraining the Respondent from advertising either internally or externally for the position of Chief Sergeant-At-Arm with disparate and ill matched.e.A conservatory order be and hereby issued restraining the Respondent from acting unlawfully, unconstitutionally, by declaring the petitioners position redundant.f.Any other relief that the Honorable Court Deems appropriate, just and fit to grant.g.The costs of the Petition be provided for. 3.The Respondent opposed the Petition vide Grounds of Opposition contending that:i.The bicameral Parliament of Kenya was established by Chapter 8 of the Constitution and the Respondent, a constitutional commission to provide services for the running of the Parliament.ii.The Respondent is established under Article 127 of the Constitution and assumes its mandate from Article 127(6), and Section 11 of the Parliamentary Service Act 2019.iii.In line with its mandate under Article 127(6) of the Constitution and Section 11 of the Parliamentary Service Act, the Respondent established the parliamentary service and Scheme of Service for the various offices in the parliamentary including the office of Sergeant At Arms.iv.The Petition does not disclose a justiciable cause of action as it does not demonstrate the manner in which the Respondent violated the Constitution by creating schemes of service to provide for competitive recruitment of staff of the parliamentary service and to ensure attraction and retention of the best individuals to serve in the parliamentary service in line with Article 232 of the Constitution.v.Article 232 provides for the values and principles of public service to include: high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; involvement of the people in the process of policy making; accountability for administrative acts; transparency and provision to the public of timely, accurate information; subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions; representation of Kenya’s diverse communities; and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of— (i) men and women; (ii) the members of all ethnic groups; and (iii) persons with disabilities.vi.The Respondent is an independent Commission under Chapter 15 of the Constitution whose general functions and powers are those of independent Commissions under Article 252 of the Constitution as follows:(1)Each commission, and each holder of an independent office—(a)may conduct investigations on its own initiative or on a complaint made by a member of the public;(b)has the powers necessary for conciliation, mediation and negotiation;(c)shall recruit its own staff; and(d)may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.”vii.The Chief Sergeant At Arms is an important position in charge of security in Parliament and it is therefore mandatory that Parliament, relying on the principle of fair competition and merit as the basis for appointment, recruits from qualified individuals who are capable of providing Parliament with the necessary securityviii.The Chief Sergeant-at-Arms is an office in the Parliamentary Service charged with duties involving service to the Speaker, Members, the Clerk and other staff of the National Assembly and performance of chamber and ceremonial duties.ix.The duties carried out by a Sergeant-at-Arms entail:- maintaining custody of the mace, ensuring protective security for all persons and property and advises the Speaker and the Clerk on the same; performing chamber and ceremonial duties, providing interdepartmental and chamber support services, enforcing and implementing the Speaker's orders and other directives, allocating office accommodation to Senators and staff and conference rooms to Committees, ensuring fire prevention and safety of the facilities, ensuring compliance with occupational health requirements/standards, accessing control management, crowd management, ensuring desirable housekeeping standards, maintaining decorum within the precincts of parliament, disaster preparedness and mitigation, investigating incidents, coordinating parliament police, disseminating relevant information to members through notice boards, carrying out periodical security surveys, and conducting institutional risk assessment.x.The wider public interests lie in this Honourable Court protecting the process of recruitment of officers in the parliamentary service and specifically the Sergeant at Arms on the basis of fair competition and merit.xi.The term Sergeant-at-Arms is described in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (25th edition, 2019), as a senior parliamentary officer responsible for maintaining order, security, and performing ceremonial duties, often carrying the ceremonial mace, which symbolizes the authority of the House and the Speaker and in this regard therefore, the standards for recruitment set out by the Parliamentary Service Commission are in line with constitutional principles and the law.xii.In light of the critical role that the Chief Sergeant at Arms plays and the duties for which they are responsible, it is imperative that the individual recruited to serve as Chief Sergeant at Arms meets the high standards required to perform the role.xiii.The Court in David Mwaure Waihiga vs Public Service Commission & 4 Others [2017] KEHC 9541 (KLR), established the principle that differentiation is not discrimination.xiv.The Respondent’s Schemes of Service require highly skilled individuals and the requirement for qualifications is differentiation but not discrimination that is prohibited by the Constitution.xv.The impugned advertisement refers to the disciplined services the rank of a Major or Senior Assistant Inspector General of Police or its equivalent and therefore the role is open to a wide field of qualified individuals from the disciplined services.xvi.The Petitioner had not demonstrated a prima facie case with likelihood of success to this Honourable Court as the Petitioner has not proved that there have been unconstitutional or unlawful actions and therefore this Honourable Court ought to decline to issue the orders sought by the Petitioner since, the process prescribed in the Parliamentary Service Act and the Schemes of Service is presumed constitutional and the presumption has not been rebutted.xvii.The Application herein does not disclose any violation of the Constitution to warrant the intervention of this Honorable Court and there is no justiciable cause of action.xviii.The Constitution and the Parliamentary Service Act mandate the Respondent to discharge its mandate and ensure an efficient and effective parliamentary service recruited on the basis of fair competition and merit and hence the orders sought herein are an affront to the Constitution and the Parliamentary Service Act. 4.The Respondent urged that the Petition be dismissed with costs to the Respondent. 5.In its submissions, the Respondent raised the following issues:i.whether the Court’s jurisdiction has been properly invoked as per requirements of section 12 of the ELRC Act,ii.whether the Respondent’s advertisement dated 10th November 2025 was regular and proper,iii.whether the Petitioner is entitled to the orders sought and who bears the costs of the Petition and the Application. 6.On the first issue, it was contended that the Court lacked jurisdiction on account that the Petitioner lacks the locus to institute the suit due to the absence of an employer-employee relationship between the parties. Reliance was placed on the Supreme Court decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and Owners of Motor Vessel “Lillian S’ vs Caltex Oil (Kenya) Ltd [1989] KLR 1 to submit that this Court only determines matters arising from an employer-employee relationship. 7.On the second issue, the Respondent submitted that was empowered by section 35 of the Parliamentary Service Act to develop schemes of service for the various offices in the Parliamentary service. It was further submitted that from the outlined job description, it was clear that the same captured all the disciplined services by providing for the military, police or their equivalent; therefore, the Petition was based on errors. It was contended that the Petition had a justiciable cause of action as it did not demonstrate the manner in which the Respondent violated the Constitution. That the advertisement was regular and in strict compliance with the provisions of Article 232 of the Constitution, particularly Article 232(g); which promotes fair competition and merit as the basis of appointment and promotion in the public service. 8.Reliance was placed on the decision in Katiba Institute & another v Attorney General & another; Julius Waweru Karanja & 128 others (interested parties) [2021] eKLR. It was argued that without cogent evidence of the alleged violations, the Petition had not laid a basis for the grant of the orders sought. It was submitted that it was not open to the Petitioner to demand a constitutional commission to lower the requirements for the appointment to a job in public service; whereas there were qualified persons for appointment. 9.On the third issue, it was contended that the Petitioner was not entitled to the reliefs sought. Reliance was placed on the decision in Huko & 28 others v Ministry of Lands & Settlement & another (Constitutional Petition E006 of 2024) [2025] KEELC 7968 (KLR) (19 November 2025) (Judgement). The Court was urged to dismiss the Petition in its entirety for non-disclosure of the specific violations, lack of merit as well as want of locus standi. 10.On costs, it was submitted that costs should follow the event. The Court was urged to dismiss the application with costs to the Respondent. The Court was invited to rely on the decision in Republic vs Rosemary Wairimu Munene ex-parte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd [2]. Analysis 11.The issues for determination are:i.whether the Petitioner has the locus to proffer this suit,ii.whether the impugned advertisement violates the Constitution andiii.whether the Petition is merited. 12.On the first issue, the court is guided by the Supreme Court’s holding in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR) where the Court stated that:67.It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. In John Wekesa Khaoya v. Attorney General, Petition No. 60 of 2012; [2013] eKLR the High Court thus expressed the principle (paragraph 4):“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…” 13.Since the Petition is based on Constitutional violations, the issue on locus standi is a foregone conclusion. 14.On the second issue, the Petitioner’s contended that the advertisement locked out other members of service who had not served in the military. The Petitioner appears to be alleging discrimination. The advertised qualifications for appointment were listed as:Requirement For Direct Appointmenta)Must possess a Master’s degree in Security/Criminology or in a related field from a recognized institution;b)Must have at least fifteen (15) years’ cumulative experience three (3) of which must be in senior management position in the disciplined services with strong military or paramilitary background;c)Must have served in the disciplined services for a period of not less than twelve years with exemplary service and attained the rank of a Major or Senior Assistant Inspector General of Police or its equivalent;d)Must be computer literate;e)Must possess a certificate of exemplary service; andf)Must be compliant with Chapter Six of the Constitution. 15.Both the constitution of Kenya and the Employment Act Section 5 of the Employment Act provides prohibit unfair discrimination as follows:5.(1)It shall be the duty of the Minister, labour officers and the Industrial Court–(a)to promote equality of opportunity in employment in order to eliminate discrimination in employment; and(b)to promote and guarantee equality of opportunity for a person who, is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya.(2)An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.(3)No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee―(a)on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;(b)in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. 16.Further the Employment Act provides for instances that do not constitute discrimination as follows:(3)It is not discrimination to―(a)take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;(b)distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;(c)employ a citizen in accordance with the National employment policy; or(d)restrict access to limited categories of employment where it is necessary in the interest of state security. Emphasis added. 17.In order to determine this issue, it is important to ascertain whether the Petitioner provided evidence of discrimination. Clearly, other than producing the impugned advertisement, the Petitioner provided no evidence to show that the job description was contrary to any law or best practice. 18.In addition, the Petitioner alleged that the current Sergeant At Arms was a career civil servant in Provisional Administration, not from any disciplinary forces, but provided no evidence to prove the assertion. 19.The foregoing resonates with the Court of Appeal decision in Nebert Bernard Muriuki v Multimedia University of Kenya [2020] KECA 37 (KLR) as follows:In conclusion on this ground, we are satisfied that the terms of service assigned to the newly-recruited deputy directors vis a vis those of the appellant did not amount to discrimination in the work place, as the employer is permitted to discriminate “on the basis of an inherent requirement of a job”. See section 5(4)(b) of the Employment Act. In view of this the respondent has discharged the burden of disapproving discrimination as alleged by the appellant and this ground of appeal, in our view, has no merit and accordingly fails.” 20.In finding that the Petitioner has failed to prove that there were any constitutional violations that ought to be remedied, Court, is guided by holding of the Court of Appeal in Mohammed Abduba Dida v Debate Media Limited & another [2018] KECA 642 (KLR) as follows:From the above cited authorities two fundamentals become apparent, one is that provisions or rules that create differences amongst affected persons do not of necessity give rise to the unequal or discriminatory treatment prohibited by Article 27, unless it can be demonstrated that such selection or differentiation is unreasonable or arbitrary and created for an illegitimate or surreptitious purpose. And the second is that, whether or not there has been a violation of the Constitution should be determined by applying a three stage enquiry to the circumstances of each case. The three stage enquiries are; firstly, whether the differentiation created by the provision or rules has a rational or logical connection to a legitimate purpose; if so, a violation of Article 27 will not have been established. If not, a second enquiry would be undertaken to determine whether the differentiation gives rise to unfair discrimination. If it does not, there is no violation of the constitution. But if the selection or differentiation gives rise to unfair discrimination, then the third enquiry would be necessary to determine whether it can be justified within the limitation provisions of the constitution. 21.See also the observation of the Supreme Court in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) as follows:52.At this point, it is thus important to distinguish between direct and indirect discrimination. The distinction was clearly outlined in the High Court case of Nyarangi & others v Attorney General [2008] KLR 688 as follows:“Direct discrimination involves treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involves setting a condition or requirement which is a smaller proportion of those with the attribute are able to comply with, without reasonable justification. The US case of Griggs v Duke Power Company 1971 401 US 424 91 is a good example of indirect discrimination, where an aptitude test used in a job application was found “to disqualify negros at a substantially higher rate than white applicants”.53.The Court of Appeal in Mohammed Abduba Dida v Debate Media Limited & another [2018] eKLR quotes the case of Kedar Nath v State of WB (1953) SCR 835 (843) where the Supreme Court of India stated that:“Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.”54.In considering indirect discrimination, Justice Silber in the UK High Court case of Queen, on the Application of Sarka Angel Walkins Singh v the Governing Body of Aberdare Girls High School, & another [2008] EWHC 1865, (paragraph 38), considered the claimants’ case on the grounds of indirect discrimination, prescribing several steps to guide the proof:a.to identify the relevant ‘provision, criterion or purpose’, which is applicable;b.to determine the issue of disparate impacts, which entails identifying a pool for the purpose of making a comparison of the relevant disadvantage;c.to ascertain whether the provision, criterion or practice also disadvantages the claimant personally; andd.to consider whether the policy is objectively justified by a legitimate aim; and to consider (if the above requirements are satisfied) whether this is a proportionate means of achieving such a legitimate aim.55.The Supreme Court of United Kingdom in Essop & ors v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27 explained six key features of indirect discrimination as follows:“24.The first salient feature is that, in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.25.A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.26.A third salient feature is that the reasons why one group may find it harder to comply with the PCP than others are many and various (Mr. Sean Jones QC for Mr Naeem called them “context factors”).27.A fourth salient feature is that there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage.28.A fifth salient feature is that it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence.29.A final salient feature is that it is always open to the respondent to show that his PCP is justified - in other words, that there is a good reason for the particular height requirement, or the particular chess grade, or the particular CSA test.”The Court is guided accordingly. 22.Finally, having failed to evidentiary prove that the Respondent’s advertisement was unfairly discriminative or violated any provision of the Constitution of Kenya, it is clear that the instant Petition. Lacks merit and it is accordingly dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 19TH DAY OF MAY, 2026.DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.