https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1446

Gitonga v National Environment Management Authority (Judicial Review E083 of 2025) [2026] KEELRC 1446 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1446 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review E083 of 2025 JW Keli, J May 22, 2026 Between Erastus Gitonga Applicant and The National Environment Management Authority Respondent Judgment 1.The Exparte Applicant was an employee of the respondent and had applied for promotion to 2 positions of employment. He was dissatisfied with the manner in which the respondent handled the recruitment process and filed the instant judicial review proceedings vide Notice of Motion dated 15th December 2025 pursuant to leave granted by the court (Justice Ongaya, as he then was) on the 11th December 2025 and sought for the following orders-a.This Court be pleased to issue an Order of Prohibition, prohibiting the Respondent by herself, agents and/or servants from advertising the position of Corporation Secretary/Director Legal Services (Grade E2) and commencing or continuing with the intended recruitment.b.This Court be pleased to issue an Order of Certiorari to remove and bring to this Honourable Court for purposes of quashing, the decision of the Respondent made by the 93rd Board of the Respondent's Board held on 28th November 2025, to advertise the position of Corporation Secretary/Director Legal Services (Grade E2) and commencing or continuing with any intended recruitment.c.This Court be pleased to issue an Order of Prohibition, prohibiting the Respondent by herself, agents and/or servants from advertising the position of Deputy Director Legal Services (Grade E3) and commencing or continuing with the intended recruitment.d.This Court be pleased to issue an Order of Certiorari to remove and bring to this Honourable Court for purposes of quashing, the decision of the Respondent made by the 93rd Board of the Respondent's Board held on 28th November 2025, to advertise the position Deputy Director Legal Services (Grade E3) and commencing or continuing with any intended recruitment.e.This Court be pleased to issue an Order of Mandamus, to compel the Board of the respondent to approve the recommendations of the 61st Ordinary meeting of its Finance and Human Resources Committee and appoint the applicant to the position of Corporation Secretary and Director Legal Services (Grade E2).f.That the costs of this application be in favour of the Applicant. Grounds of the application 2.The exparte applicant is the Acting Corporation Secretary and Director of Legal Services of the National Environment Management Authority (NEMA) whereas the respondent is the Chief Executive Officer. 3.The Respondent is established under the Environmental Management and Coordination Act, 1999, to exercise general supervision and coordination of environmental matters country-wide and to be the principal instrument of government in implementation of environmental policies. It is thus an institution in the public service. 4.The respondent is in gross violation of the national values and principles of governance in Article 10- social justice, rule of law, non-discrimination and good governance and the values and principles of public service in Article 232 of the Constitution especially fair competition and merit as the basis for appointments and promotions. 5.The exparte applicant has worked for the respondent for a continuous period of over 16 years rising through the ranks on merit and bagging several awards on behalf of the respondent. 6.The exparte applicant on various and separate recent occasions expressed his interest for the vacant positions of Deputy Director Legal Services (Grade E3) and Corporation Secretary and Director Legal Services (Grade E2) and the Finance and Human Resources Committee of the Board approved and made recommendations to the Board as follows-a.The exparte applicant was recommended by the 89th Special Finance and Human Resources Committee of the respondent's Board as the only suitably qualified applicant for the position of Deputy Director Legal Services (E3) but having earlier applied for the higher position of Corporation Secretary and Director Legal Services (Grade E2) pending for approval by the 93rd Board scheduled to sit on the 28th November 2025, the vacancy be re-advertised externally; andb.The exparte applicant was recommended for appointment by the 93rd Board sitting on the 28th November 2025 by the 61st Ordinary Finance and Human Resources Committee to the position of Corporation Secretary and Director Legal Services (Grade E2). 7.That pursuant to circumstances arising pursuant to execution of a valid court decree in Nairobi ELRC 547 of 2018- Erastus K Gitonga and 4 others vs National Environment Management Authority, where the exparte applicant and 4 others as decree holders touching on payment of certain remunerative allowances, a garnishee order nisi was issued by this Court in ELRC 547 of 2018 and served by Order of the Court on the respondent on the 21st November 2025. 8.That since the service of the said peremptory order of Court and which was made by dint of a lawful legal process, the applicant was summoned to an informal Board sitting and 'read for the riot act'. The exparte applicant's cries to invite objectivity on the part of the Board Chairperson and members would fall on deaf ears. 9.That the exparte applicant would subsequently be restrained from carrying out his usual Board duties as the acting corporation secretary by inter alia, being ghosted from the sitting of the 93rd Board held on the 28th November 2025. 10.That the exparte applicant would subsequently learn that the respondent through its Chairperson and members of the Board, had made a subjective decision not to approve the recommendations to appoint him to either the Grade E3 or Grade E2 positions and instead to re-advertise the 2 positions externally. 11.That the exparte applicant would subsequently learn that the respondent intends to put up the said advertisement in the upcoming weekly edition of the MyGov scheduled for the 16th December 2025. 12.That the aforestated actions of the respondent have been carried out without any fair hearing, no disciplinary or other legitimate process and are meant to embarrass and punish the applicant for what is otherwise victimization for being part of a court execution process. 13.That the exparte applicant has served the respondent for the past 16 years during which he has excelled and received commendations and award for service No disciplinary record against the respondent exists as he has a clean record over all the 16 years. 14.That the exparte applicant is a senior advocate of the High Court and having served the respondent for 16 years, is the face of the legal department at the Institution. To advertise the 2 positions in the manner being done by the respondent will not only deny him justice but also expose him to ridicule and embarrassment by members of the legal fraternity and the NEMA family. 15.The Respondent is a public body, in carrying out its duties, the Respondent is mandatorily required by law to comply with the rules of natural justice and act fairly as provided for under Article 47 of the Constitution and the Fair Administrative Actions Act. The respondent's administrative actions are taken with an ulterior motive and purpose calculated to prejudice my legal rights. 16.The actions of the respondent have had the effect of stalling the applicant's career progression and his basic salary notwithstanding that the applicant has been on acting appointment for the past over 2 years whereas the respondent's human resource instruments cap acting allowances to 6 months. The actions of the respondent contravene section 34 of the Public Service Commission Act. 17.It is against public policy and the Constitution that a public body like the Respondent herein should be allowed to act in such unfair and unreasonable manner without any regard to the constitution and the rule of law. The respondent institution should not be run like a private enterprise. This Honourable Court has the requisite power, jurisdiction and duty to prohibit the intended external advertisement and recruitment as the same is guided by extraneous matters divorced from the goals of justice. It is the duty of the Court to ensure that its processes do not degenerate into tools for personal score-settling or vilification on issues NOT pertaining to that which the system was formed to perform. 18.It is the primary duty of this Honourable Court to uphold its dignity and sanctity of court decrees by protecting those who uphold it, by restraining the intended victimization of the exparte applicant herein with a view of ensuring that bad governance is not allowed to become a pawn in settling personal civil feuds and individual vendetta. 19.The Respondent's actions are unlawful, career killing, arbitrary, malicious, capricious, ultra vires, unreasonable, discriminatory, actuated by bad faith, based on extraneous considerations, against the exparte applicant's lawful, legitimate and rightful expectation and taken in breach of the rules of natural justice. 20.It is only fair, just, and proper that the intended advertisements and recruitment by the Respondent, be stayed pending the hearing and determination of the substantive Application for Judicial Review. The applicant is particularly eager to hear the reasons of the respondent. 21.It is only fair and just that this matter be heard urgently and the orders sought granted forthwith to restrain the Respondents from abusing its statutory duties. 22.The exparte applicant filed verifying affidavit dated 9th December 2025 in support of the judicial review application. Response 23.The respondent entered appearance through the state law office and filed replying affidavit sworn by Dr. Mamo B. Mamo, EBS, its Director General on the 29th January 2026 and responded to the judicial review application as follows- 24.That the Applicant herein has been holding the position of Acting Corporation Secretary and Director Legal Services since July 2023. (Annexed herein and marked as "MBM 1" is a copy of the appointment letter) 25.That contrary to the orders being sought by the Applicant for orders of mandamus to compel the board to appoint him to Corporation Secretary /Director Legal Services (Grade E2), the Applicant ought not to have legitimate expectation of being appointed to the said position. 26.That acting appointments are subject to specific regulations, and there is no legal provision that guarantees automatic or permanent employment based on time served in an acting capacity. 27.That at the time the Applicant was appointed Acting Corporation Secretary/Director Legal services he had not yet acquired the mandatory requirement of Corporation Secretary and as such had not met all the requirements for a substantive appointment. 28.That it is profound that the Applicant would rely on a-mere recommendation of 28th of November 2025 by the 61" Ordinary Finance and Human Resources Committee to consider him for the Position of Corporation Secretary and Director Legal Services (Grade 2) with full knowledge that the position requires a competitive recruitment process. (Annexed herein and marked as "MBM2" is a copy of the minutes by the 61s, Ordinary Finance and Human Resources Committee) 29.That the position of Corporation Secretary/Director Legal Services is a senior management position that requires a competitive recruitment process and further such appointments must be based on merit and competitive selection. 30.That the Applicant herein must participate in a competitive recruitment process to be confirmed, and his role in an acting capacity does not bypass the above requirement. 31.That I am aware that the general principle is that the Courts will not interfere with an employer's right to perform internal human resources functions such as recruitment, appointment and promotion therefore for the Applicant to be confirmed, he must go through the formal and competitive interview process conducted by the NEMA Board. 32.That the Applicant herein is holding the positions of Corporation Secretary/ Director Legal Services (Grade E2) and the position of Deputy Director Legal Services (Grade E3) at ransom by seeking for orders of Prohibition from advertising the two positions. 33.That as mentioned above, the Applicant in fact ought to allow for advertisement to be done as vacant positions herein cannot be filed without interested candidates undergoing a competitive recruitment process. 1 34.That in the circumstance, the Court cannot grant the Applicant orders to quash the sound decision made by the Respondent in the 93rdBoard meeting held on 28th November 2025 to advertise the positions of Corporation Secretary/ Director Legal Services (Grade E2) and Deputy Director Legal Services (Grade E3) respectively and commence or continue with any intended recruitment. 35.That the Applicant will not suffer substantial loss as there can be no confirmation of the Applicant to the subject positions without competitive recruitment as contemplated by the law and Section 5.3 of the Respondent's Human Resource Policy and Procedures Manual in line with national values and principles of transparency, integrity and accountability under Article 10 (2) (c ) of the Constitution. (Annexed herein and marked as "MBM3" is a copy of the excerpt from NEMA Human Resource Policy and Procedures Manual). 36.The exparte applicant replied to the response vide his supplementary affidavit dated 5th February 2025 as follows- First and foremost is to point out that the respondent has not complied with the court's directions of the 11th December 2025 which required it to file and serve its response by the 16th January 2026. It only did so on the 30th January 2026 and effectively pushing the exparte applicant out of the compliance window of 1st February 2026. 37.That I therefore make this rejoinder affidavit slightly out of time owing to the late filing and service by the respondent. Secondly and perhaps more importantly, is to note that the respondent has not responded to my substantive motion but has instead made its response to the earlier chamber summons- already spent. Effectively, my substantive Notice of Motion dated 15th December 2025 is unopposed. The same had been served as per the affidavit of service on record dated 16th December 2025. 38.However and without prejudice to the foregoing, I still wish to respond or say the following.-‘THAT while I concur with the contents of paragraph 3 of the respondent's affidavit, I disagree with paragraph 4 and insist that I indeed carry a legitimate expectation of being confirmed to the position of Corporation Secretary and Director Legal Services. I will reiterate the reasons why as follows-a) I was so appointed to act on 27th June 2023 and acted all the way for over 2 and a half years which is way over the 6 months provided by the law- Section 34 Public Service Commission Act. Earlier on in the year 2010, I had also been appointed to act again in the same position (see annexure EK1 in my verifying affidavit; b) Acting appointments are only conferred by law to persons that have demonstrated the requirements of the position to which they act. Appointing authorities are thus estopped from pleading otherwise Section 34(2) Public Service Commission Act. c) I attended and emerged top at a competitive interview advertised and held by the Board in the year 2024 September- These records are available but in the custody of the respondent and for which purpose I will apply to cross examine the respondent's witnesses. d) Case law such as Oyatsi v Judicial Service Commission (Petition E111of2021) 2022KEELRC3(KLR) (10March2022) (Judgment) has settled this position of legitimate expectation. THAT the averments at paragraphs 8 and 9 are true in principle only but erroneous in fact- I did on invitation by the respondent, attend and excel at an interview advertised externally for the position of Corporation Secretary/Director Legal Services (Grade E2) where I was ranked as Number 1. It is mischievous to require that I attend a second interview within 12 months of a previous one unless of course the objective is to rig the outcome. This is yet another issue for which I hereby apply to cross examine the deponent or witnesses of the respondent. 'Shown to me and marked as EK9 is a copy of my letter of invitation to the interview held on 31st October 2024' 39.That in further support of the fact that I had attended a competitive interview, I refer to the observations column of MIN9/FHR/61/2025 of the Report of the 61st ordinary meeting of the Finance and Human Resources Committee of the respondent's Board annexed in my verifying affidavit as annexure EKЗ. I reiterate the fact that the respondent's Board had at the said 61st meeting observed that I needed not be subjected to another interview since it was less than 12 months since the last one and I was fully qualified for the position of Corporation Secretary/Director Legal Services (Grade E2). The recommendation of this Board Committee appearing at the second column of MIN9/FHR/61/2025 is especially instructive. 10. THAT the respondent had also issued an internal advertisement for the position of Deputy Director Legal Services (grade E3) and I was shortlisted as the only qualified candidate. This is competitive recruitment. See MIN 2/SFHR/89/2025 of the 89th Special meeting of the Finance and Human Resources Committee annexed earlier by me as annexure EK 2. THAT I do hold and possess all the requisite qualifications for the positions of Corporation Secretary and Director Legal Services (Grade E2) as well as that of Deputy Director Legal Services (Grade ЕЗ). THAT I urge this Court to enquire on why else I would be shortlisted by the 61st Finance and Human Resource Committee of the respondent's Board for appointment to the E2 position (See annexure EK3), if it wasn't for the fact that I was qualified and suitable. Why would the tide only change after the 20th November 2025? THAT in response to paragraphs 10 to 14, I reiterate the foregoing averments and add that Courts will interfere indeed where the processes of recruitment are tainted with impropriety, irrationality and procedural unfairness. This is the mandate of this judicial review court. THAT it has taken extreme boldness and fortitude on my part to contest the obvious wrongdoings and indications of bad governance by the respondent. As the bastion of good governance of the respondent, which I have held as the Acting Corporation Secretary, It would be a travesty of justice if I had decided to throw in the towel and let bad governance fester. The Respondent's actions are unlawful, career killing, arbitrary, malicious, capricious, ultra vires, unreasonable, discriminatory, actuated by bad faith, based on extraneous considerations, against my lawful, legitimate and rightful expectation and taken in breach of the rules of natural justice. It may be important to mention that the respondent had also at around the 15th or 16th December 2025, lodged a complaint to the Ethics and Anti-Corruption Commission (EACC) as against me, on matters squarely before this Court in this suit and other related ones. I was summoned to record my version of events and I wish to hereby submit a copy of my written statement as the same will shed further light on my case and the procedural unfairness of the respondent. 'Shown to me and marked here as EK10 is a copy of my statement to the EACC' THAT the determination and degree of the malafides manifested by the respondent only support the possibility that there could be an external candidate 'under grooming' and that in as much as it is a violation of my rights to subject me to another interview, no fairness is expected to be achieved at such further interview. 40.The application was canvassed by way of written submissions. Both parties complied. Determination 41.The exparte applicant identified the following issues for determination-a.Whether the respondent was fair, rational and proper at its 93rd Board meeting, in deciding to externally advertise the positions of Corporation Secretary/Director Legal Service (Grade E2) and Deputy Director Legal Services (Grade E3)?b)Whether the respondent was fair, rational and proper at its 93rd Board meeting in refusing to confirm the exparte applicant to the position of Corporation Secretary/Director Legal Service (Grade E2)?c)Whether the respondent was fair, rational and proper at its 89th Special meeting of the Committee of Finance and Human Resources of its Board, in refusing to shortlist and recommend the exparte applicant to the position of Deputy Director Legal Services (Grade E3)?d)Whether this Court can step in and interfere in the recruitment process the subject of this judicial review? 42.Conversely, the respondent identified the following issues for determination – Whether the Respondent's Actions Are Unfair, Capricious, Discriminatory and Constitute Bad Corporate Governance. The respondent tackled the issues addressed by the exparte applicant. 43.While the decision was pending for delivery it was arrested vide application by the Respondent dated 11th May 2026 seeking for the following orders-a.That pending the inter partes hearing of this application, this Honourable Court be pleased to arrest judgment that is slated for delivery on 15th May 2026.b.That this Honourable Court do take judicial notice of the Judgment delivered by Hon. Justice Dr. Jacob Gakeri in ELRCPET/E265/2025 Erastus K. Gitonga & Another vs The National Environment Management Authority and bind itself by its findings on the identical issue of the Respondent's non-appointment to the position of Corporation Secretary and Director of Legal Services.c.That this Honourable Court do take judicial notice of the Judgment delivered by Hon. Justice Dr. Jacob Gakeri in ELRCPET/E265/2025 Erastus K. Gitonga & Another vs The National Environment Management Authority and bind itself by its findings on the identical issue of the Respondent's decision to advertise the position of Corporation Secretary and Director of Legal Services.d.That this Honourable Court be pleased to grant any other suitable order it deems fit and just in the circumstances.e.That costs of this application be provided for. 44.Both parties appeared before me and the application was allowed by consent to effect that the court was to take judicial notice of the findings of Justice Dr Gakeri in the said petition as the cause of action was similar and between the same parties. 45.The court thus addressed issues framed by the parties as -a)Whether the respondent was fair, rational and proper at its 93rd Board meeting, in deciding to externally advertise the positions of Corporation Secretary/Director Legal Service (Grade E2) and Deputy Director Legal Services (Grade E3) and whether the prayers sought are merited? Whether the respondent was fair, rational and proper at its 93rd Board meeting, in deciding to externally advertise the positions of Corporation Secretary/Director Legal Service (Grade E2) and Deputy Director Legal Services (Grade E3) and whether the prayers sought are merited? The exparte applicant’s submissions 46.The applicant reiterated grounds in support of the application and further submitted as follows- THAT the exparte applicant is a senior advocate of the High Court of 20 years standing and the bastion of corporate governance by virtue of his duties at the respondent's service and having served the respondent for 16 years, is the face of the legal department at the Institution. То advertise the 2 positions in the manner being done by the respondent will not only deny him justice but also expose him to ridicule and embarrassment by members of the legal fraternity. The Respondent is a public body, in carrying out its duties, the Respondent is mandatorily required by law to comply with the rules of natural justice and act fairly as provided for under Article 47 of the Constitution and the Fair Administrative Actions Act. No written reasons for the respondent's administrative decisions have been given yet the same impinge or affect the applicant's fundamental right to equality and freedom from discrimination, human dignity and fair labour practices. It is against public policy and the Constitution that a public body like the Respondent herein should be allowed to act in such unfair and unreasonable manner without any regard to the constitution and the rule of law. The respondent institution should not be run like a private enterprise. The exparte applicant was appointed to the Grade E2 position on the 27th June 2023 (See MBM1 in the respondent's own reply affidavit) and given an acting allowance which the respondent has continued to pay at all times material to this suit. The suitability of the exparte applicant was therefore not in doubt since he was paid an acting allowance and never a special duty allowance. The respondent's Human Resources and Procedures Manual (2020) provides as follows paragraph 8.6- at "When an officer is called upon to perform duties of a higher post but does not possess the necessary qualifications for appointment to that post, he shall be paid special duty allowance at the rate of fifteen per cent (15%) of the officer's basic salary or fifteen percent (15%) of the minimum of the higher grade, whichever is higher. The payment of special duty allowance will be subject to approval by the Director General." The Public Service Commission Act at section 34 provides as follows- (2) A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office. (3)An officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months. In Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR) (10 March 2022) (Judgment), this Court while applying its mind to a similar scenario touching on a different employer held as follows- "The respondent's appraisal and evaluation of the performance of the petitioner confirmed that she was duly qualified and competent to hold that position for that long time and her performance from the respondent's own documents had been exemplary. The respondent having enjoyed the exemplary service from the petitioner discharging the full mandate of director finance was bound to pay commensurate remuneration provided the petitioner continued to hold and serve the judiciary in that position. The respondent had by its acts of commission and omission grossly violated the petitioner's right to fair labour practices ordained by Article 41(1) of and had exacerbated the situation by denying the petitioner her right to fair remuneration payable to a holder of the position of director of finance of the judiciary and in violation of Article 41(2)(a) of and in violation of its own judiciary establishment for the position of Director Finance, and section B20(iii) and (iv) of the Judiciary Human Resource Policies and Procedures Manual." "The omission by the respondent for an inordinate period of more than six (6) years not only perpetrated a violation of the petitioner's right to fair labour practices and the right to fair remuneration under article 41 of the Constitution. That conduct also violated the petitioner's right to equal protection and equal benefits of the law protected under article 27(1) of and that omission constituted direct discrimination against the petitioner as against her male peers for failure to pay her equal remuneration for work of equal value mandated by section 5(5) of the Employment Act, 2007 in violation of Article 27(2), (3) and 4 of the Constitution." "By continuing to hold the petitioner in the position of director of finance, for a period of more than six (6) years, while refusing to appoint her substantively to the position, the petitioner had a right to be given reasons why she could not be appointed and remunerated correctly. The denial of the information violated the petitioner's right under article 35(1)(b) and also subjected the petitioner for an inordinately long period, to unreasonable working conditions in violation of article 41(2) (c) of the Constitution." In Malaya v Masinde Muliro University of Science and Technology (Petition 5 of 2023) [2023] KEELRC 3005 (KLR) (23 November 2023) (Judgment), another Court held as follows- "For legitimate expectation to arise, there must have been a clear and unambiguous intention on the part of the public authority, the respondent, to confirm the petitioner to the position. That intention was not manifested by the Registrar of Administration that the petitioner was to be confirmed to the position of university librarian, but rather, he directed that the position be filled as the same was vacant and not occupied by the petitioner." We have pleaded and provided evidence in the nature of recommendations of the 89th Special and 61st Ordinary sittings of the Finance and Human Resource Committee of the respondent's Board that indicate axiomatically that the respondent had expressed a clear and un ambiguous intention to have the exparte applicant appointed to initially the Grade E3 position and eventually to the Grade E2 position. The reports of these Committees have been produced as annexures EK2 and EK3. We also add that the exparte applicant was also subjected to competitive interviews for both positions and emerged top- facts acknowledged by the respondent as evidenced in the foregoing reports EK2 and EK3. The Court in the Malaya v Masinde Muliro University of Science and Technology (supra) continued to hold as follows- "The period from when the petitioner was engaged in an acting capacity was from November 23, 2015 to April 25, 2022 and from May 1, 2022 to October 31, 2022 culminating in 6 years 11 months. That was beyond the six months contemplated by the Public Service Commission Act. There was no provision for what would happen in that case. Due to the respondent's omission to fill the position of the university librarian for a period of 6 years and 11 months, the petitioner's right to fair labour practices and fair remuneration was violated." "The Public Service HR Manual was to be used as the source of the minimum terms where а public entity wished to formulate its own human resource manual. A public entity must formulate its human resource policies either at par with the Public Service HR Manual or on higher terms, but an entity could not go below the provisions of the terms in the Public Service HR Manual." In light of the foregoing submissions, we surmise that indeed the respondent was irrational, improper, non-objective at its decision to re advertise the position of Corporation Secretary/Director Legal Service when the exparte applicant had served it for over 16 years and acted in the position for over 2 and a half years, attended and excelled in an external recruitment process and even received commendation for appointment by the 61st meeting of the Finance and Human Resources Committee of the respondent's Board. 47.Conversely, the respondent submitted as follows- The Applicant seeks a declaration that the Board's decision to advertise is unfair, capricious, discriminatory and contrary to good corporate governance the same which is unsupported by evidence. A declaration cannot issue in vacuum; it must be anchored on proven illegality or constitutional violation. The decision of the Respondent to advertise the vacant positions is lawful and statutorily mandated and grounded in: a) Article 232 of the Constitution which enshrines the principles of merit, transparency, accountability, and fair competition. b) Section 37 of the Public Service Commission Act, 2017 mandates that where a vacancy is to be filled, the authorized officer shall invite applications by advertising the vacancy in at least one daily newspaper of nationwide circulation and other appropriate platforms. c) Section 34 Public Service Commission Act, 2017 which states that (1) Acting appointments shall be-(a)made by the lawful appointing authority; and(b)subject to the prescribed regulations and procedures which apply to appointments. d) The Mwongozo Code of Governance for State Corporations which equally emphasizes merit-based and competitive recruitment for senior management positions. The Respondent, being a State Corporation, is bound by the above constitutional and statutory obligations therefore cannot be faulted for taking steps to comply with mandatory legal requirements. To restrain the Respondent from advertising the positions externally will amount to compelling it to act in violation of the law and contrary to Article 232 of the Constitution of Kenya 2010 which mandates transparency, accountability and fair competition in public service appointments. Further, according to the minutes MIN9/FHR/61/2025 attached in the Respondent replying affidavit dated 29th January 2026 interviews were conducted in 2024. The Applicant although interviewed lacked the mandatory qualification of being a Certified Public Secretary hence unsuitable for the position of Corporation Secretary (Grade E2) even after the best candidate was selected but declined the offer. We submit that the Board's resolution to externally advertise the positions is not arbitrary but in compliance with constitutional and statutory obligations. In conclusion, the Respondent cannot be faulted for choosing the legally compliant route of advertising and holding open competitive recruitment. In the decided case of Union of Kenya Civil Servants v. Attorney General & 2 others; Public Service Commission & 10 others (Interested Parties) (Petition E026 of 2025) [2025] KEELRC the court stated that: "The Public Service Commission Act, 2017 and the Constitutional prescription do not appear to provide for appointments or promotions other than by open competitive recruitment or selection." Appointments are guided by the Public Service Commission Act (2017) and the Mwongozo Code of Governance for State Corporations, which require merit-based appointments, not automatic ones. Section 34 of the Public Service Commission Act provides that " acting appointments are temporary and should not undermine the competent appointment of a substantive holder of the office. " The Applicant has not demonstrated any statutory provision compelling the Board to adopt committee recommendations and the mere existence of a favorable recommendation cannot convert into a legitimate expectation of appointment. Furtherance to the above, the Applicant argues that the acting appointment created a legitimate expectation that he would be appointed as Corporation Secretary however, the Respondent submits that administrative processes cannot override clear statutory requirements. In Kango & another v Ministry of Interior and Coordination of National Government & 4 others; Kipaa (Interested Party) (Petition E018 of 2025) where the court quashed appointments where the recruitment process failed to follow statutory and constitutional procedures and infringed principles of fair administrative action, including public advertisement and merit-based selection. The Respondent relies on the case of Republic v Nairobi City County & another exparte Wainaina Kigathi Mungai [2014] e KLR, where the Court held that: "legitimate expectation cannot override clear statutory provisions." The Applicant cannot rely on legitimate expectation to defeat statutory recruitment procedures. Additionally, the Applicant argues that because he was paid acting allowance (not special duty allowance), his suitability is beyond doubt. The Respondent herein submits that the Applicant's argument is legally flawed. Acting allowance only confirms temporary assignment of duties and not automatic promotion. That suitability does not eliminate the need for competitive recruitment. Decision 48.The court at the outset states that the ex parte applicant did not attach or produce the cited documents under the verifying affidavit. The court was thus not able to make any decision as relates the position of Deputy director of legal services as the documents cited as EK2 was not attached for the court to peruse. There was no evidence of the application for the position and invitation for interviews. The court then found the allegations as related to the position were unsupported. The exparte applicant had the burden to prove his allegation of having applied and been recommended for appointment to the position. That did not happen. 49.As regards the position of Director Legal Services, as per the annexure EK3 , ordinary session 61st of the Finance and Human Resources Committee, though not produced by the exparte applicant, was produced by the respondent as MBM2. The document is reproduced as follows- ‘Min 9/fhr/61/2025: Request To Fill The Vacant Position Of Corporation Secretary/director Legal Services (CS/DLS)…IntroductionThe position of CS/DLS grade E2 was advertised on 7 May 2024 along with other vacant positions at the time. The interviews for the position were conducted on 31 October 2023 by an ad hoc committee of the Board.The detailed paper to the Committee is annexed as Annex 6.Requested ActionThe Committee is requested to deliberate and recommend the appointment of the officer performing duties of the Corporation Secretary, to the position of CS/DLS grade E2.Deliberationsi.The position had been advertised and candidates interviewed in 2024 but the candidate offered the position did not take up the position.ii.The HR manual allows filling of vacant positions with candidates previously interviewed for a similar position within one year.iii.The position had remained vacant since that time and Mr. Gitonga had been the officer performing duties of the Corporation Secretary since he is the senior most officer in the directorate.iv.The officer performing duties of the Corporation Secretary had been part of the candidates interviewed and actually emerged the best candidate but lacked the mandatory qualification of being a Certified Public Secretary.v.The position of CS/DLS was a very senior position that the board relies on for guidance on governance issues and should be filled competitively.vi.There was no consensus on what to recommend to the full board.RecommendationSince there was no consensus the Committee resolved to forward the request for the position of CS/DLS grade E2 to the full board for decision’ The court noted that contrary to assertion by the exparte applicant, the committee did not recommend his appointment as it stated –‘ The officer performing duties of the Corporation Secretary had been part of the candidates interviewed and actually emerged the best candidate but lacked the mandatory qualification of being a Certified Public Secretary.’’ The exparte applicant was thus not candid in his application before the court. 50.The exparte applicant in submissions relied on the decision in Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR) (10 March 2022) (Judgment) and In Malaya v Masinde Muliro University of Science and Technology (Petition 5 of 2023) [2023] KEELRC 3005 (KLR) (23 November 2023) (Judgment) where the court held acting for a long period amounted to unfair labour practice. The exparte applicant stated he had acted for 2 years which is beyond the period of acting under The Public Service Commission Act at section 34 provides as follows- (2) A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office. (3)An officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months. The court noted that the issue of acting claim was res judicata, having been determined by Justice Dr. Gakeri in the Judgment brought to the court's attention, delivered on the 4th May 2026 in ELRC PETITION NO. E265 OF 2025. 51.The exparte applicant sought an order of Mandamus to compel his appointment as director of legal services and for an order of prohibition to prevent recruitment for the 2 positions. In defining the scope of the order of prohibition and mandamus, the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) stated-‘That now brings us to the question we started with, namely, the efficacy and scope of mandamus, prohibition of certiorari. These remedies are only available against public bodies such as the Council in this case. What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition, Vol.1 at pg.37 paragraph 128. 25.What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. We can do no better than give examples.’’(emphasis given) The court applied the foregoing decision in the determination of the judicial review application. The court found the decision of the respondent was lawful as the finance and human resources committee had clearly stated the ex parte applicant was not qualified due to the lack of a mandatory document. 52.It is a constitutional imperative that positions in public service be filled competitively. Article 232(1) of the Constitution states –‘232. (1) The values and principles of public service include—(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions.’ I agreed with the respondent that the acting could not amount to a legitimate expectation for automatic promotion as this would be affront to Article 232. In Republic v Nairobi City County & another exparte Wainaina Kigathi Mungai [2014] e KLR ,the Court held that: "legitimate expectation cannot override clear statutory provisions." The court could only intervene if the process was tainted with illegality, was irrational or ultravires as per the pronouncement of the scope of orders of prohibition and mandamus in the Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR)(above). 53.The exparte applicant raised issue of victimization pursuant to a court case in in Nairobi ELRC 547 of 2018- Erastus K Gitonga and 4 others vs National Environment Management Authority, where the exparte applicant and 4 others as decree holders touching on payment of certain remunerative allowances, a garnishee order nisi was issued by this Court in ELRC 547 of 2018 and served by Order of the Court on the respondent on the 21st November 2025. The court found it had jurisdiction on the issue as held by the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) ‘ It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.’ Again, the issue is res judicata, having been canvassed before Justice Dr Gakeri and determined in the decision in ELRC PET. NO. E265 OF 2025 delivered on 4th May 2026 as follows: ' From the foregoing, the irresistible finding of this court is that the petitioners were victimised for having sued the Respondent and regrettably won the case against their employer. All the actions the Respondent took against the petitioners after service of the Garnishee Order nisi were deliberately intended to punish them for daring to sue and win a case against the Respondent. Minutes of the Finance and Human Resource Committee of the board clearly show how it perceived to 1st petitioner before November 2025. They characterized him as a diligent and reliable employee capable of executing the duties and responsibilities of the office of Corporation Secretary and Director Legal Services of the Respondent. It required no emphasis that victimization of an employee on account of having sued the employer cannot constitutes a fair labour practice. It bonders, discriminatory treatment. The employee's right to fair labour practices under article 41 of the Constitution of Kenya is a constitutional imperative. What amounts to fair labour practice is a question of fact and law. In the end, the court is satisfied that the Petitioner's case of victimization is sustainable. ….On compensation or damages, having found that the Respondent victimized, the Petitioners unjustifiably and thus violated their right to fair labour practices, the petitioners are entitled to damages under Article 23 (3) of the Constitution of Kenya, and bearing in mind that the petitioners are still employees of the Respondent and will resume duty forthwith, the award of Kshs.100,000.00 each is in the court's view sufficient.’ 54.The court, in the circumstances, finds no merit in the application for judicial review orders as sought. The issue of victimisation, while merited, was res judicata, the same having been determined in ELRC PET NO. E265 OF 2025.The interim Order for stay of the recruitment is set aside. In view of the existing employment relationship, I make no orders as to costs. 55.It is so ordered. DATED, SIGNED, AND, DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoEx parte Applicant: MahindaRespondent: Ms Achieng