Barasa v Director of Public Prosecutions & 2 others (Petition E033 of 2026) [2026] KEELRC 1799 (KLR) (25 June 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E033 OF 2026 *(Before Hon. Justice Dr. Jacob Gakeri)* MARK NABUYUMBU BARASA, ‘ndc’ (K) ………..……………. PETITIONER VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS ………. 1ST RESPONDENT OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ………………………………….. 2ND RESPONDENT THE PUBLIC SERVICE COMMISSION ………………… 3RD RESPONDENT JUDGMENT 1. The Petitioner was employed in public service in 2006 and has risen through the ranks based on professional competence, attaining the level of SADPP in 2021. On 29th May 2024, he was appointed Deputy Head of Department, Conventional and Related Crimes, with responsibility for deputizing the Head, coordinating other divisions, and heading the Civil Rights Division. Further, while performing duties independently, the Petitioner, in May 2025, lawfully made a charging decision in a police trespass case (MCCRMISC/E1798/2025) and filed a Miscellaneous criminal application for search warrants in a police assault/trespass matter. As a consequence, the 1st Respondent issued a verbal reprimand and directed him to withdraw the application and he complied by writing to the court. Further, the Petitioner made a lawful charging decision in a police torture case involving a British citizen of Somali descent, one Ms. Mahammud Ayni Hussein, for which the petitioner was issued a notice to show cause in May 2025; despite the decision being legally sound under prosecutorial guidelines. 2. That in addition to the notice to show cause, he was issued with a deployment letter to the Prosecution Training Institute (PTI) with "immediate effect". He avers that the action has since left him without legal duties, constituting a constructive suspension and victimization. He added that Ms. Mahammud Ayni Hussein, the victim in the torture case, had filed Judicial Review Case No. HCCHRPET/E629/2025 in the Milimani High Court and lodged a complaint with the Ombudsman challenging the 1st Respondent's decision to withdraw the case without informing the victim. 3. The Petitioner deponed that in January 2026, the Respondents advertised vacancies for Deputy Director (DPP 3) and Senior Deputy Director (DPP 2). That despite his qualifications and experience, he was excluded from the shortlist published on 26th January 2026, while junior officers and officers on secondment outside the 2nd Respondent were shortlisted. He stated that the advertised positions were for internal promotions within the Office of the Director of Public Prosecutions. He further averred that the expectation that based on established practice and HR policy, officer at the level of SADPP, such as himself, would seamlessly progress to Senior Deputy Director or Deputy Director roles, subject to merit and qualifications. He added that despite meeting all merit-based criteria and having no disciplinary findings, the Petitioner was excluded from the shortlist, while junior officers and officers on secondment-some of whom were previously under his administrative supervision were shortlisted, demonstrating arbitrariness, discrimination, and breach of HR policy, contrary to Articles 10, 27, 41, 47, 73, and 232 of the Constitution 4. The Petitioner averred that upon seeking reasons for exclusion, the 1st Respondent issued a direct threat via electronic communication, stating: "You want war with me?". Subsequently, on 27th January 2026, he received an irregular, ad hoc invitation to attend an interview scheduled for 5th February 2026, outside the official shortlist and interview period, without any formal amendment of the shortlist to include his name he termed the invitation as a procedural nullity, issued in bad faith, and designed to create the false impression of fairness, in contravention of constitutional principles and Human Resource policies. He averred that some shortlisted candidates were on secondment outside the 2nd Respondent, contrary to internal HR policies, and their shortlisting leaving out the Petitioner demonstrated favoritism, lack of meritocracy, and discrimination. 5. He further averred that the positions of DPP 2 and DPP 3 were strategic command offices, exercising oversight over departments, regions, and counties, and prosecutorial discretion in very sensitive matters touching on: Public finance, economic crimes, election offences, and national security. He added that a flawed process risked entrenching incompetence or compromised officers, undermining institutional integrity and public confidence. The prays for:- 6. A declaration that the decision of the 1st and 2nd Respondents not to shortlist the Petitioner for the posts of DPP 2 and DPP 3 is unconstitutional, null, and void. 7. An Order of *Certiorari* quashing the published shortlist dated 26th January 2026 (V/No. 17/2025 & 18/2025). 8. A Permanent Injunction restraining the Respondents from proceeding with interviews or appointments until the Petitioner is fairly considered, pending the hearing and determination of this Petition. 9. A declaration that the Petitioner's deployment to Prosecution Training Institute-PTI with "immediate effect" and lack of duties constitutes victimization and violates fair labour practices. 10. An Order for disclosure of: * Shortlisting and selection criteria; * Scoring sheets and matrices for all candidates; * Details of secondments and HR considerations in the selection process. 1. General and punitive damages for the violation of the Petitioner's constitutional rights, professional reputation, and career prospects. 2. Costs of this Petition to be borne by the Respondents. 3. Any further or other relief the Court may deem just and equitable. 4. The Respondents opposed the Petition vide their Replying Affidavit sworn by Dr. Solomon Kiawa, the 2nd Respondent’s Deputy Head of the Human Resources Management (HRM) who stated that he wished to reiterate the contents of his Affidavit sworn on 30th January 2026 in response to the Petitioner's application dated and filed on 28th January 2026 together with the instant Petition. He stated that the Respondent on 29th December 2025 advertised for the positions of Senior Deputy Director of Public Prosecutions and Deputy Director of Public Prosecutions. Subsequently, it published a list of shortlisted candidates on 26th January 2026, which also informed the candidates the venue, dates and times their interviews would be undertaken. 5. He stated that following the shortlist, the Respondent received a number of appeals and requests from various officers, including the Petitioner seeking a review of the decision to not include them in the list. That the Respondent reviewed the decision and included the Petitioner and 20 other officers to the list, and timeously informed them through letters to each one of them. He stated that the Petitioner was specifically informed vide letter dated 27th January 2026 of his interview of 5th February 2026. He stated that the Petitioner responded to the letter on the same date, seeking clarification whether the shortlist had been amended to include his name, and promised to attend upon confirmation of his inclusion in the official shortlist. He added that the Petitioner was informed that his interview was scheduled for 2.40pm through WhatsApp. That despite his inclusion to the list and invitation or the interview, the Petitioner served the Respondent with the instant Petition dated 28th January 2026; and thereafter showed up for his interview. 6. He deposed that at the close of the selection process on 6th February 2026, the 2nd Respondent’s advisory board notified the 1st Respondent of the completion of the process and of the selection of the successful candidates in the Board meeting held on same day. He sated that the Petitioner on 9th February 2026 notified the 1st Respondent of his intention to withdraw the petition, which the Respondents recorded that they had no objection to the Petitioner’s unconditional withdrawal of the Petition. He noted that at the time, the recruitment had already been closed and the successful candidates notified, a fact the Petitioner was aware of. He deposed that on advice of counsel, he reasonably believed that the Petitioner has not met the threshold for the grant of any of the reliefs sought in the Petition. 7. He stated that the Petitioner has not exhausted the internal appeal mechanisms and the dispute resolution mechanisms outside formal judicial system. He added that the Petitioner has not met the threshold for the grant of a declaration that the decision not to shortlist him for the subject positions is unconstitutional. null. and void, as it is evident that he and twenty (20) other officers were added to the list of candidates to attend the interviews upon the appeals and requests by various officers for review of shortlisting decision. He stated further that the Petitioner had not met the threshold for the grant of an order of *Certiorari* quashing the List of the Shortlisted Candidates published on 26th January 2026, as the basis of the prayer since the Petitioner had not been shortlisted was already remedied by his inclusion in the list of candidates, and his attendance of the interview on 5th February 2026. 8. He deposed that it is his belief that the fact that a person is shortlisted for a position and or attends an interview, is not an automatic guarantee of appointment to the said position. He stated that such appointment depends on the number of vacancies available, and the performance of each candidate, among other factors. He added that the subject recruitment process having been completed and the successful candidates already deployed, the prayer for a permanent injunction restraining the Respondents from proceeding with the subject selection process was no longer available as the process was already complete. 9. The affiant deponed that the Petitioner was obligated to proof the allegation that some shortlisted candidates were on secondment outside the 2nd Respondent contrary to internal Human Resource Policies and Procedures Manual, and that their shortlisting while leaving out the Petitioner demonstrated favoritism, lack of meritocracy and discrimination. He added that all the shortlisted candidates were shortlisted on merit. He denied the allegation that the Petitioner’s deployment to the Prosecution Training Institute (PTl) constituted victimization and or violated fair labour practices. and therefore, required him to prove the same. He deponed that contrary to the Petitioner's assertion, his transfer to the PTI was a normal transfer which considered the needs at the PTI, as his leadership skills and the wealth of knowledge needed for the PTI at the material time. As such, he urged that the Petition be dismissed for want of merit. Submissions 1. In his submissions, the Petitioner raised the following issues for determination: whether exclusion of the Petitioner from the officially published shortlist complied with the mandatory requirements of Articles 10, 27, 47, 232, and 236 of the Constitution; whether the Respondents' total failure and refusal to furnish the Petitioner with written reasons without undue delay for his exclusion violated Article 47(2) of the Constitution and Section 4 of the Fair Administrative Action Act, 2015; whether the Respondents' refusal to disclose core recruitment records violated the right of access to information under Article 35 of the Constitution and rendered the recruitment process un-auditable; whether the Respondents have discharged the legal and constitutional burden to prove that the recruitment process was grounded upon objective merit, equal treatment, and fair competition; whether this Court is entitled and bound to draw an adverse inference under Section 114(g) of the Evidence Act (Cap 80) from the Respondents' deliberate refusal to produce the recruitment records within their exclusive custody; whether the Petitioner is entitled to the declarations, structural interdicts, and invalidation remedies sought. 2. The Petitioner submitted that the transformative architecture of the Constitution of Kenya, 2010 completely uprooted the common-law doctrine of absolute administrative discretion; and public bodies no longer operated in a vacuum of unreviewable power. He submitted that Article 10(2) constitutionalized the national values and principles of governance, including the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalized, good governance, integrity, transparency, and accountability, and binds the Respondents in every facet of their administrative operations. He added that Article 232(1) codified the values and principles of public service, which imperatively include subjecting recruitment to fair competition and merit; ensuring representation of Kenya's diverse communities; Affording equal opportunities for appointment and promotion at all levels of the public service. 3. He submitted that the above substantive values are given operational teeth by Article 47(1) & (2) (guaranteeing lawful, reasonable, and procedurally fair administrative action, and the right to written reasons) and Article 35(1) (a) (guaranteeing the right of access to information held by the State). He contended that within the public employment context, Article 236(a) provided an explicit constitutional shield, protecting public officers from being victimized, discriminated against, or dismissed from office without due process of law for the lawful performance of their duties. He added that the grid of constitutional protections was reinforced by Section 4 of the Fair Administrative Action Act, 2015, the Access to Information Act, 2016, and the 2nd Respondent's own Human Resource Policies and Procedures Manual April 2022. 4. On shift of the evidentiary burden, the Petitioner submitted that in constitutional litigation, once a petitioner establishes a *prima facie* case of a violation, the evidentiary burden shifted to the State organs to demonstrate compliance with the Constitution. Reliance was placed on the decision in *Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR,* where the Court of Appeal held that:- *"The Constitution of 2010 has completely transformed administrative law in Kenya... Discretionary power must be exercised reasonably, rationally, and within the four corners of the Constitution. Courts have both the power and the duty to scrutinize the underlying basis of administrative action to ensure there is no abuse of power."* 1. The Petitioner further submitted that the principle was further deepened in *Dr. Magare Gikenyi J. Benjamin v Attorney General & another [2022] eKLR*, where the Court stated: *"Public appointments and recruitment cannot be structured as private arrangements or insulated from scrutiny. Accountability and transparency under Article 10 and 232 mean that the criteria and records used to evaluate citizens for public office must be clear, objective, and auditable."* 1. He submitted further that by choosing to suppress these records, the Respondents had failed to discharge their evidentiary burden. He added that a public body could not hide the metrics of its decision and simultaneously ask a constitutional court to presume its legality. On the structural duty to give written reasons, the Petitioner relied on *Judicial Service Commission v Mbalu Mutava & another [2015] eKLR*, where the Court of Appeal observed:- *"The right to be afforded written reasons is intended to ensure transparency and prevent arbitrary decisions. It allows the affected party to inspect the mind of the decision-maker and enables the court to test the rationality and legality of the impugned action."* 1. Reliance was placed on the decision in *Dry Associates Limited v Capital Markets Authority [2012] eKLR*, where the Court held:- *"The constitutionalization of administrative justice under Article 47 means that the traditional common law exceptions to natural justice are severely restricted. A public officer or institution must act in a manner that openly exhibits fairness, and the failure to give reasons where rights are affected constitutes a fatal procedural defect."* 1. The Petitioner submitted he that was a Senior Assistant DPP with an unblemished record of public service and exceptional qualifications and thus, his exclusion from the published shortlist severely affected his career progression and professional reputation. He added that the Respondents’ complete failure to provide written reasons to date constituted a direct, fatal violation of Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act, invalidating the entire shortlisting phase. On the consequence of willful non-disclosure, and the doctrine of adverse inference, the Petitioner submitted that he formally served a Notice to Produce the core recruitment records and obtained explicit judicial directions compelling the production without undue delay. He added that the Respondents willfully and intentionally disobeyed these processes, choosing instead to file generic, evasive replying affidavits that deliberately concealed the selection records.to buttress his submission. He relied on *Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2013] eKLR*, where the High Court held:- *"Information held by the State or its organs belongs to the citizens. It does not belong to the officeholders. When a citizen requests information to test the validity of a public process, the State has a high constitutional obligation to disclose it, unless it falls within the narrow, strictly proved exceptions of national security."* 1. The Petitioner submitted that the foregoing position was reinforced in *Katiba Institute v President's Delivery Unit & 3 others [2021] eKLR*, which confirmed that public institutions cannot invoke institutional autonomy to cloak their administrative processes in secrecy. He added that since the Respondents had deliberately withheld these critical materials from the Court, the Petitioner urged the Court to apply the mandatory presumption under Section 114(g) of the Evidence Act (Cap 80). He added that the law is settled that where evidence which could be and is required to be produced is withheld, the Court must presume that the evidence, if produced, would have been unfavorable to the person who withhold it. 2. He further submitted that Article 232(1) (g) of the Constitution of Kenya demanded that recruitment and promotion within the public service be based on "fair competition and merit." He contended that under the transformative constitutional framework, merit was not an elusive, subjective feeling locked within the private bosom of an appointing authority, but an objective, measurable, and verifiable standard that must be capable of independent reconstruction through an impeccable paper and digital trail. Reliance was placed on *Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR*, where the Court of Appeal held:- *"The values of integrity, merit, and transparency under Articles 10, 73, and 232 are objective thresholds. A public body cannot merely declare that a candidate is or is not qualified. There must be an auditable record showing the criteria used, the weight attached to those criteria, and the comparative assessment of the candidates to justify the choice made."* 1. It was submitted that the above position was echoed in *Benson Riitho Mureithi v J.W. Wakhungu & another [2014] eKLR*, where the Court set aside a public appointment on the ground that the selection process was un-auditable due to a lack of clear evaluation records. He noted that a public recruitment process that cannot be reconstructed through formal minutes, score matrices, and clear criteria was a constitutionally broken process, which opened the door to nepotism, cronyism, and personal vendettas, directly undermining the independence and integrity of the Office of the Director of Public Prosecutions. 2. The Petitioner submitted that he deposed in his Supporting Affidavit that his sudden and punitive deployment to the Prosecution Training Institute (PTI) on 28th May 2025 was an act of institutional victimization intended to sideline him following his unyielding, independent stance on a sensitive case review. He added that it was a fundamental principle of the law of evidence and pleadings, that facts deposed to in an affidavit which are not specifically denied, answered, or controverted by the opposing party are deemed in law to be true and admitted citing the decision in *Nairobi City County v Realline Company Limited [2018] eKLR*, where the Court stated:- *"Where a party fails to controvert facts deposed to, those facts stand unchallenged, uncontroverted and the Court is bound to accept them as the absolute truth."* 1. He further submitted that his subsequent, unexplained exclusion from the published shortlist could not be viewed in isolation as it was the direct, poisonous fruit of the same tree of admitted victimization and *mala fides* intended to stall his career progression despite his elite qualifications, directly violating the protective shield of Article 236(a) of the Constitution as reinforced in *Ngongo v Roche Kenya Limited [2013] eKLR* and *Judicial Service Commission v Gladys Boss Shollei [2014] eKLR.* 2. The Petitioner further submitted that the Petition transcended the personal grievances of the Petitioner as it exposed a systemic, structural breakdown within the recruitment and human resource management systems of the 2nd Respondent, characterized by a culture of non-disclosure, arbitrary ad-hoc procedures, and institutional insulation from constitutional review. Reliance was also placed on *Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KSC 1 (S.C. Petition No. 3 of 2018),* where the Supreme Court of Kenya affirmed the jurisdiction of courts to grant structural interdicts and supervisory remedies to cure systemic institutional failures:- *"Under Articles 22 and 23 of the Constitution, the courts have a broad, innovative power to grant reliefs that are forward-looking, including structural injunctions and supervisory orders, to ensure that public institutions restructure their processes to align with constitutional mandates."* 1. The Petitioner urged that to protect the public interest and secure the values of Article 232, it was no longer enough to merely declare the past process invalid. He urged the Court to exercise its supervisory jurisdiction to compel the 3rd Respondent (Public Service Commission) to conduct a thorough, independent structural audit of the recruitment, promotion, and deployment practices of the 2nd Respondent to eliminate arbitrary, caprice and ensure total systemic transparency. Analysis 1. The singular issue for determination is whether the impugned recruitment process was fair, just and constitutional. 2. The instant case concerns the filling of public office and as such, bring into focus the principles governing public service enshrined under Articles 73(2) and 232 of the Constitution which spell out the values and principles of public service as follows respectively:- *Article 73(2) provides as follows: -* *(2) The guiding principles of leadership and integrity include –(a)selection on the basis of personal integrity, competence and suitability, or election in a free and fair elections;* 1. Article 232 on the other hand provides thus: *232. (1) The values and principles of public service include—* *(a) high standards of professional ethics;* *(b) efficient, effective and economic use of resources;* *(c) responsive, prompt, effective, impartial and equitable provision of services;* *(d) involvement of the people in the process of policy making;* *(e) accountability for administrative acts;* *(f) transparency and provision to the public of timely, accurate information;* *(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;* *(h) representation of Kenya’s diverse communities; and* *(i) 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.* *(2) The values and principles of public service apply to public service in—* *(a) all State organs in both levels of government; and* *(b) all State corporations.* *(3) Parliament shall enact legislation to give full effect to this Article.* 1. The above Article mandates all state organs and corporations to ensure fair competition and merit as basis for appointments and promotion. The Petitioner’s contention was that the process in this instance was flawed and thus should be declared null and void. It is trite that no one can purport to derogate from these strict underpinnings of the Constitution and claim to be doing justice. In addition Clause 32 of the Public Service Regulations, 2020 provides that:- *A public institution shall—* *(a) develop and implement employment equity plans;* *(b) review their recruitment policies to ensure that the mode of advertisement of job vacancies, the pre-selection and conducting of interviews do not in any way disadvantage any particular group; and* *(c) take deliberate measures including targeted advertisements to bring on board marginalized groups.* 1. On whether the Petitioner has laid a *prima facie* case warranting the Respondents’ rebuttal, I am guided by the decision in Mrao Ltd V First American Bank of Kenya Ltd & 2 Others [2003] eKLR where the Court stated as follows:- *“a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”* 1. The Petitioner averred that he was not shortlisted, and upon querying the same, he received an invitation to attend the interview. The Respondents on the other hand acknowledged the Petitioner’s allegation adding that there were indeed 20 such other cases. No evidence was tendered to prove the allegation or in support of the change in mind and inclusion of the alleged 20 other applicants in the interview schedule. I was the Respondents duty to prove to the Court that indeed it acted in a transparent manner and in accordance with the applicable constitutional principles. There was also no formula placed before this court to show how the shortlist was arrived at and how the Petitioner and the other applicants missed the first selection but were lucky enough to be invited for interviews, but yet again, not qualify for the positions. From the foregoing, the Court finds that the process was flawed and in contravention of the constitution. 2. The process was characterized by procedural impropriety and could not pass muster. The most intriguing part of the respondent’s recruitment process was what happened to those who did not seek review on the assumption that the process was conducted on merit and how it occurred that over twenty candidates met the threshold for shortlisting but none had been shortlisted and none qualified after the alleged interviews. 3. A panoramic view of the recruitment process reveals that the processes employed by the Respondents fell below the constitutional threshold and the resultant appointments cannot stand and are declared null and void. 4. Puzzlingly, the 2nd Respondent had the opportunity to demonstrate that the process was constitutionally compliant but opted not to do so. Evidence of the shortlisting criteria and scoring would have effortlessly exonerated the Respondents from blame. 5. The Respondent shall re-advertise the positions and invite eligible candidates to express their interest and thereafter conduct a transparent, credible and auditable recruitment process. 6. Finally, the fact that the 2nd Respondent refused, failed or neglected to furnish the Petitioner with the information he had requested for and as adverted to elsewhere in this judgment refused to demonstrate that its processes were constitutionally sound, and violated the Petitioner’s constitutional right to fair administrative action renders it liable in to damages. 7. On the quantum of damages for violation of constitutional rights, the Court is guided by the decision in John Gakuo & Timothy Moki Kingondu v County Government of Nairobi, Governor, Nairobi City County & Governor, Nairobi City County (Civil Appeal 201 of 2016) [2018] KECA 462 (KLR) (Civ) (13 July 2018) (Judgment) where the Court of Appeal held:- *“We have come to the conclusion that the appellants were entitled to compensation for violation of their right to fair administrative action and not under the Employment Act as the learned judge proceeded. We therefore set aside the award of Kshs 904,448.00 and substitute therefore an award of Kshs 1,500,000.00 to each appellant as damages for violation of their right to fair administrative action.”* 1. The Petitioner is awarded the sum of Kshs.1,000,000. Being an employment disputes and parties are still in an employment relationship, it is only fair that parties bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026. DR. JACOB GAKERI JUDGE ORDER In 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. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026. DR. JACOB GAKERI JUDGE