Gicheru v Kenya Utalii College & another (Petition E160 of 2026) [2026] KEELRC 1853 (KLR) (30 June 2026) (Ruling)

Gicheru v Kenya Utalii College & another (Petition E160 of 2026) [2026] KEELRC 1853 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1853 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E160 of 2026 M Mbarũ, J June 30, 2026 Between Rosalind Gicheru Petitioner and Kenya Utalii College 1st Respondent Mr. Mark R. Ogendi, Principal And Chief Executive Officer (CEO), Kenya Utalii College 2nd Respondent Ruling 1.The petitioner filed an application dated 13 May 2026 under the various provisions of the Constitution, the Fair Administrative Action Act and Section 12 of the Employment and Labour Relations Court Act and Orders 40 and 51 of the Civil Procedure Rules, seeking orders:1.Spent.2.Spent.3.Pending hearing and determination of the petition, an interim conservatory order be and is hereby issued staying and suspending the implementation of the deployment of the petitioner from the position of Acting Director, Utalii Hotel, to the Strategy Directorate.4.Spent.5.Pending the hearing and determination of the petition, an interim order be and is hereby issued directing the respondent to reinstate forthwith and continue paying the petitioner’s acting allowance and extraneous allowances corresponding to Grade KUC2.6.Spent.7.Pending the hearing and determination of the petition, the respondent be restrained from appointing or maintaining any other person in the acting position of Director, Utalii College.8.An order of disclosure be issued compelling the respondent to provide the petitioner and this court with the Council Resolution and Minutes of the meeting held on 4 May 2026.9.Costs be in the cause. 2.The petitioner supports the application on the grounds that, on 7 May 2026, the petitioner was served with a pay change advice deploying her from the position of Ag. Director, Utalii College with effect from 9 May 2026. This was unprocedural and irregular, which will lead to cessation of the petitioner’s 20% acting allowance and extraneous allowance, hence causing her significant financial prejudice. 3.In her Supporting Affidavit, the petitioner avers that the respondent has unconstitutionally replaced her with another officer, James Kamau, in an acting capacity despite the substantive position remaining vacant. A competitive recruitment has been underway since September 2025. 4.The petitioner avers that the respondent has refused to disclose the Council Resolution or the minutes of the meeting held on 4 May 2026, which sanctioned the move, despite the petitioner's request for the same. These actions violate the petitioner’s rights under articles 41 and 47 of the Constitution, as well as the principles of transparency and accountability under article 10. The respondent has further violated section 45 of the Employment Act on the right to fair labour practices. 5.The petitioner has a legitimate expectation of continuing to serve as the respondent's acting director until the substantive position is filled through the ongoing competitive recruitment process. The replacement of one acting officer with another is contrary to the Employment Act and established public service human resource procedures. The petitioner has been denied the right to a hearing and to information regarding her deployment, contrary to sections 41 and 47 of the Constitution. The purported deployment amounts to a demotion, as the petitioner has been removed from a high position of responsibility as acting director. The reassignment to a lower position is a demotion without justification, and unless the orders sought are issued, the petitioner shall suffer loss and damage. 6.In her affidavit, the petitioner avers that her substantive position is assistant director, strategy and partnerships. She was appointed acting director on 1 October 2023 and has been in this role since. She has had oversight roles until 9 May 2026, when she was redeployed to the earlier position without justification; hence, the orders sought should be issued. 7.In reply, the respondent filed Grounds of Opposition on the basis that under section 34(4) of the Public Service Commission Act (PSC Act), an acting appointment is temporary and should be for a mandatory period of 6 months. The petitioner's acting position was thus capped. The cessation of the acting allowance and extraneous allowance is an administrative consequence upon the expiry of the acting appointment. The respondent has since appointed James Kamau as the acting director as a lawful interim measure within the respondent's operational mandate under the Tourism Act. 8.Further grounds of opposition are that the petitioner's application is premature, as the petitioner has failed to exhaust internal administrative dispute resolution mechanisms before invoking the court's jurisdiction. The application is vexatious and an abuse of the court process and should be dismissed. 9.On the application, the petitioner submitted that she has been in an acting position since her appointment on 1 October 2023. Her substantive role is assistant director, strategy and partnerships. She is aware that James Kamau has been appointed acting director to replace her, which is not permissible in the public service since she was the higher-placed officer within the respondent. 10.The respondent submitted that it is a public entity regulated under the Tourism Act and that the PSC Act applies in terms of its human resource function. An officer in an acting role should hold the position for only 6 months. The respondent has acted in this regard in accordance with the law and has appointed another officer as acting director. Determination 11.The petitioner admits that her substantive role is that of assistant director, strategy and partnership. She was appointed acting director through a letter dated 1 October 2023. 12.It is a common cause for the respondent to be a public entity. It is regulated under the PSC Act with respect to human resource management. 13.The petitioner is seeking a conservatory order stopping her deployment from the acting position of director to the position of assistant director, strategy and partnership. The petitioner is also seeking reinstatement to the acting position of director and supply with the minutes of the respondent Council meeting held on 4 May 2026. 14.An acting role is regulated under section 35 of the PSC Act. An officer qualified for appointment in an acting position should only hold such an acting role for not more than 6 months under section 34(3) of the PSC Act. Thus, in Ojode v Kenya National Shipping Line Limited & another (Cause E009 of 2024) [2025] KEELRC 2676 (KLR), the court held that an acting role is temporary unless confirmed through a letter of appointment. 15.In Njuguna v Kenya Literature Bureau & another; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E099 of 2024) [2025] KEELRC 2915 (KLR), the court held that Section 37 of the PSC Act and the PSC Regulations 2020 only allow acting appointments to be for a maximum period of six months. Holding such office beyond the legal maximum is unlawful, and no rights can accrue therefrom. 16.The orders sought by the petitioner to be reinstated to the position of acting director, Utalii College, to an acting position held from 1 October 2023 to 9 May 2026 went against the legal maximum. She cannot enjoy orders based on an illegality. Issuing a conservatory order allowing the petitioner to revert to the acting role would entrench such illegality. Allowing the petitioner to hold an acting position for more than 6 months was a gross error on the part of the respondent. 17.In Bulemi v Lake Victoria North Water Works; Luvusi & another (Interested Parties) [2023] KEELRC 187 (KLR), the court held that unless permissible for explained reasons, an acting position in the public service is regulated under the PSC Act. In the case of Susan Khakasa Oyatsi v Judicial Service Commission (2022) e KLR, the employee who held an acting position for more than 18 months was found to have done so with the employer's directions, and hence it was permissible. 18.In this case, the petitioner acknowledges that James Kamau has since been appointed as the acting director of Utalii College. Communication has been issued to her to revert to the substantive position. The alleged loss of acting and extraneous allowances at 20% was not part of the salary but for the acting role for the time held. 19.The petitioner cannot thus claim to enjoy a position beyond the legally permitted maximum where there are no exceptional circumstances. The alleged loss attached to the position only accrues when acting. The petitioner retains her substantive position with the respondent. 20.On the orders sought to be supplied with Council Minutes from the meeting held on 4 May 2026, the acting position having ceased, the need to access Council Minutes ceases unless the purpose and reasons for the supply of such records are stated. This can be addressed administratively and outside this petition. 21.The petitioner is seeking the costs to be in the cause. 22.This taken into account, the application dated 13 May 2026 is without merit and costs in the cause. DELIVERED IN OPEN COURT THIS 30TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………and……………………………………………