https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1610

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E270 OF 2025** *(Before Hon. Justice Dr. Jacob Gakeri)* **INSTITUTION OF ENGINEERING TECHNOLOGY OF KENYA.…………………………….…............................... PETITIONER** **VERSUS** **KENYA NATIONAL HIGHWAYS AUTHORITY…...1ST RESPONDENT** **THE ATTORNEY GENERAL ………………………….2ND RESPONDENT** **AND** **THE ENGINEERS BOARD OF KENYA…………..INTERESTED PARTY** **JUDGMENT** The Petitioner filed the instant suit on 18th December, 2025 together with a Notice of Motion under Certificate of Urgency seeking various interim Orders and vide a Ruling delivered on 24th March, 2026, the court stayed the Respondent’s advertisement of 2nd December 2025 Ref No. KENHA/ENGINEERS (ROADS)/05/2025. In the Petition dated 16th December 2025, the Petitioner prayed for: 1. A Declaration that the Respondents job recruitment exercise in the advertisements dated 2nd December 2025 and 9th December 2025 offend Articles 10, 27, 28, 43, 55 and 232 (1) (g) and (i) of the Constitution Kenya, 2010. 2. A Declaration that the recruitment exercise as published in the advertisement dated 2nd December 2025 and extended on 9th December 2025 are unlawful under the Engineering Technology Act by insisting on accreditation of Petitioner’s members with the Engineering Board of Kenya. 3. A Declaration that members of the Petitioner are entitled to equal opportunity, merit-based consideration and fair administrative action in matters relating to prospective employment with and promotions by the Respondent and other relevant employers in the Public Service. 4. A Judicial review Order of *certiorari* be issued quashing the Job recruitment exercise published by the Respondent on 2nd December 2025. 5. An order of prohibition restraining the Respondent from commencing any further or future job recruitment exercise that discriminates against qualified members of the petitioner. 6. An order of *mandamus* to compel the Respondent to issue a fresh, compliant job recruitment advertisement within 30 days from the date of judgment or such period as the court shall deem fit. 7. Costs of this petition and interest thereon at court rates from the date of the judgment until payment in full. 8. Such other or further orders as this Honourable court may deem fit, just and expedient to grant in the circumstance of this case. The Petition is grounded on Articles 10 (2) (a) (b) and (c), 23(3), 24(1), 27, 41, 43(1), 47, 55, 232 (1) (g) and (i) of the Constitution and sections 2, 3, 4 and 7 of the Engineering Technology Act, 2016. The Petitioner’s case is that the Respondent’s job advertisement dated 2nd December, 2025 and extended on 9th December, 2025 inviting qualified persons to fill 27 positions of Engineer (Roads), was discriminatory and thus unlawful by excluding it’s members on account of the job specifications namely; - 1. Bachelor of Science of Engineering, Degree in Civil Engineering Civil and Structural Engineering or its equivalent qualification from a recognized university. 2. Registration of the Engineers Board of Kenya (EBK) as a Graduate Engineer; and 3. Proficiency in Computer applications. The Petitioner is contesting (i) and (ii) above. **Respondent’s case** Vide a Replying Affidavit sworn on 21st January 2026, Matilda Mwangi deponed that the Respondent’s Career Progression Guidelines pursuant to which it was acting in respect of the impugned advertisements were approved by the Public Service Commission (PSC) in June 2025 and the position of Engineer Grade 7 were the job specifications in the impugned for Engineering (Roads) advertisements and it was the entry point. The affiant further deposed that the entry point for Engineering Technologists was Inspector Grade 9 adding that the two cadres had distinct job descriptions as set out in the career progression Guidelines and duties. The affiant itemised the job descriptions of Engineers (Roads) Grade 7 and Engineering Technologists (Inspector Grade 9). According to the affiant, the distinction between the two progressions was grounded on the differences in academic training and professional competences of holders of a Bachelors of Science in Engineering and holders of a Bachelor of Science in Engineering Technology and they were subject to distinct accreditation, registration and professional recognition frameworks and while the former are registered by the Engineer Board of Kenya (EBK) the latter are registered by the Kenya Engineering Technologists Board (KETRB). The affiant further deposed that whereas a Bachelor of Science in Engineering entailed rigorous comprehensive and theory intensive training for a period of 5 years, under a curriculum accredited by the Commission of University Education and the Engineering Board of Kenya, a Bachelor of Science in Engineering Technology holder required further training (internship). That while training of Engineers placed emphasis on engineering design, research, innovation systems analysis and professional judgment to enable graduates undertake full Professional Engineering practice and take legal responsibility for engineering works, training in Engineering Technology was predominantly applied and practical skills focusing on implementation, operation and technical support functions and the petitioners’ equating holders of the two qualifications was not only erroneous but misleading as it reflected neither the academic nor the professional or regulatory distinctions. According to the affiant, in an engineering setting the Engineer instructs technologists who instructs artisans and the requirement that applicants be registered by the EBK was not arbitrary but based on the training and that law and members of the Petitioner were registered and licensed by KETRB. The affiant deponed that the alleged legitimate expectation of members of the Petitioner to be employed by the Respondent as engineers was misconceived. Further, the affiant deponed that the Respondent had an elaborate scheme of service for Technicians and Technologists and the Petitioner’s claim that its members were excluded was unsustainable. That if the orders sought were granted, the 1st Respondent would be conducting recruitment contrary to the appeal guidelines approved by the Public Service Commission the Respondent had no authority to amend them unilaterally would derail the recruitment process and affect the Respondent’s operational capacity and project implementation timelines. Finally, by a Further Affidavit sworn on 23rd January 2026 the affiant deponed that under the Respondents Career Guidelines for Engineering Technologists the entry point was Engineering Technologist II CSG II as opposed to Engineer Grade 7. The affiant deponed that the fact that the PSC had approved the Respondent’s Career structure for Engineering Technologists was confirmation that members of the Petitioner were not excluded from employment with the 1st Respondent. **Interested Party’s Case** In her 36 paragraph Replying Affidavit sworn on 6th March 2026 Engineer Margaret N. Ogoi deponed that only persons registered by EBK could practice as engineers or offer professional engineering services and the term “Engineer’ was exclusively used by those who meet the qualifications and registration requirements under the Engineer Act. That EBK registers Graduate Engineers on application and the distinction between Engineers and Engineering Technologists was lawful as it was grounded on the law. That the differentiation in qualification requirements between the two professions was based on legitimate professional classification competence, standards and scope of professional responsibility and not discriminatory and the qualification requirements in the advertisement were neither arbitrary nor unreasonable and were based on the need to ensure that engineering services in the public service were undertaken by qualified persons. The affiant further deponed that, the impugned advertisement was consistent with the legal framework and the Petitioners’ allegations were unfounded and misconceived. According to the affiant, the distinction between Engineer and Technologists was in accord with the Washington Accord on Engineers, Sydney Accord on Engineering Technologists on Engineering Technicians and there was no discrimination in this case. The affiant sought dismissal of the Petition. **Petitioner’s Submissions** As to whether the requirement that applicant for the advertised positions be member of the Engineers Board of Kenya was discriminatory, counsel submitted that it was because it favoured members registered with the EBK thus excluding members of the Petitioner registered with KETRB who were qualified for the positions. Reliance was made on section 2 of the Engineering Technology Act which defined the phrase Engineering technology. Counsel invited the court to compare the job description advertised by the Respondent and the statutory functions of Engineering Technologists Professionals Under section 2 to urge that the function advertised by the Respondent could be performed by the Engineering Technologists. Reliance was also placed on the Respondent’s Career Guidelines approved by the P.S.C, to urge that Engineering Technologists qualified for the advertised jobs. That the Respondent should have included persons registered by KETRB to ensure fairness and inclusion. Reliance was further placed on Article 232 (1) (g) and (i) of the Constitution of Kenya and section 5 (2) and (3) of the Employment Act on fair competition and merit, equal opportunities and prohibition of direct and indirect discrimination, to submit that the Respondent was indirectly discriminating members of the Petitioner. Reliance was placed also on **Griggs v Duke Power Co. 401 US 424 1971** to urge that members of the Petitioner were academically and statutorily qualified to perform the function advertised by the 1st Respondent. Counsel urged the court to allow the petition. **Respondent’s submissions** As to whether members of the Petitioner had the professional requirements for Engineers in the advertised positions counsel submitted that the petitioner’s argument was grounded on the notion that its members were substantially equivalent to engineers and thus eligible for positions designated for engineers which was not the case as the two professions were distinct as by law required. That Engineers Act and the Engineering Technology Act, *inter alia* established regulatory bodies, namely the Engineers Board of Kenya and the Kenya Engineering Technology Registration Board respectively. That the two were also distinct in relation to training and professional accrediting in that the focus of the training was different as was the duration of training, with the later being required to undertake 3 years internship. That the distinction was affirmed in **Wanderi & 106 others v Engineers Registration Board & 5 others: Egerton University & 43 others: Interested parties (2020) eKLR.** Counsel added that the requirements for registration was a further demonstration that the two professions were distinct as were their functional roles. Counsel submitted that while Engineers dealt with theoretical and conceptual aspects while Technologists dealt with practicalities and the PSC Career Progression Guidelines embodied the distinction. That notwithstanding the overlapping tasks, the legislative intent, regulatory structure, and judicial authority recognized the two as separate professional cadres. Reliance was placed on the decision in **Institution of** **Engineering Technology of Kenya v Kenya Rural Roads Authority & another (2026) EKLR,** where the court found that the qualifications between the two cadres were different as engineers had their own professional body and had different career paths as created by the PSC. Counsel urged that technical scope, decision making, authority and professional responsibilities between Engineering Technologists and Engineers were substantial and deliberate and the requirements contained in the advertisement was not an arbitrary technical exclusion but the legal reality. As to whether the advertisements were discriminative, counsel contended that the petitioner’s case was based on a mischaracterization of the lawful differences between the two cadres as unfair discrimination. Reliance was further placed on the decision in **John Kabui Mwai & 3 other v Kenya National Examination Council & 2 others (2011) eKLR** test for discrimination that: 1. the different treatment was not based on grounds such as race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, conscience, belief, culture dress language or birth. 2. the differential treatment had an objective and reasonable justification. Counsel submitted that the advertisement was not discriminatory as the distinction between the two cadress was not based on any of the grounds under Article 27 of the Constitution of Kenya, but on Professional qualifications, competence scope of practice and thus rational and the roles advertised required qualifications and professional responsibilities distinct from those of Engineering Technologists and the Petitioner had failed to prove discrimination against its members. Reliance was placed on **John Kamau Maina v Kenya Revenue Authority (2026) KEELRC 2 (KLR)** to submit that the Respondent had a comprehensive and elaborate scheme of service for technicians and Engineering Technologists citing the decision in **“Institution of Engineering Technology of Kenya v Kenya Rural Roads Authority & another (Supra)** to submit that Engineers and Engineering Technologies had distinct Professional attributes. On legitimate expectation of the Petitioner’s members Counsel submitted that the Petitioner’s legitimate expectation for employment in the advertised positions was not breached because the members do not meet the qualifications advertised. Reliance was also placed on the sentiments of the court in **Maina Kithela Edward v Kenya School of Law & 2 others KEHC 15458 (KLR)** where acting in accord with the law by the Respondents was held not to have been in breach of the Petitioner’s legitimate expectation. Counsel submitted that the Respondent was obligated to ensure that persons employed for the position advertised were professional Engineers registered by the EBK and the qualifications for Engineers are prescribed by law. Counsel, further submitted that from the definition under the Engineering Technology Act and the job description in the Career Progression Guidelines, it was clear that the scope of Engineering Technologists did not extend to design work or assuming responsibility for safety considerations in infrastructure projects and thus not suitable for the advertised positions. **Interested party’s submissions** Mary Muchoge Senior State Counsel submitted on five (5) issues. As to whether the requirement for registration with EBK for the position of Engineer (Roads) was discriminative, Counsel submitted that EBK was the statutory body mandated to regulate the Engineering profession in Kenya and enforce standards and the requirement for registration was not discretionary. That Article of 27 of the Constitution of Kenya prohibited unfair discrimination as opposed to differentiation. Reliance was further placed on the sentiments of the court in State of **Resata & another v N. M. Thomas & others (1976) AIR 490 (1976) SCR 17906,** on the applicability of the principal of equality which presupposes parity of conditions, to urge that the distinction on between Engineers and Engineering Technologists was neither artificial nor discretionary as exemplified by the distinct regulatory regimes which were internationally recognized. Counsel submitted that the registration requirement was neither exclusionary nor discriminative. As to whether the advertisement violated Articles 41, 43 and 47 of the Constitution of Kenya, counsel submitted that Article 41 did not displace lawful professional and statutory requirements and Article 43 did not guarantee access to specific jobs or profession irrespective of qualifications and the impugned advertisement was issued in conformity with the Engineers Act and the alleged Constitutional violations had not been demonstrated. On the lawful distinction between Engineers and Engineering Technologists, reliance was placed on the focus of both disciplines in the engineering profession and were complementary not interchangeable as ordained by the Engineers Act and the Engineering Technology Act. Counsel submitted that the criteria used by the Respondent was consistent with Article 232 of the Constitution of Kenya and public interest and the requirements were neither arbitrary nor unlawful and met the threshold of Article 232. As to whether the Petitioner had met the threshold for grant of the reliefs sought, counsel submitted that the process was anchored in law and the applicable regulatory framework and neither the judicial review orders nor the other reliefs were merited. Reliance was placed on **Republic v Kenya Revenue Authority ex Parte Yaya Towers Ltd (2008) eKLR** to urge that the judicial review orders were concerned with the decision-making process as opposed to the merits. Counsel submitted that granting of the orders would be tantamount to dismantling the statutory framework and urged the court to dismiss the petition with costs. **Analysis and determination** It is not in dispute that the Respondent has Career Progression Guidelines for both Engineers and Engineering Technologists and the Guidelines were approved by the Public Service Commission (herein after PSC). Thus, the Respondent has the necessary infrastructure to employ both cadres within its ranks a fact the Petitioner DID not controvert. It is equally not in dispute that the Respondent, vide an undated notice declared vacancies for various positions, totaling 41 including 27 positions for Engineer (Roads) Vacancy Ref. No. KENHA/ENGINEER(ROADS)/05/2025 and deadline for submission of applications was 22nd December 2025 at 5.00PM. A Job description was also attached as were the impugned Job specifications which *inter alia* included Registration by the Engineers Board of Kenya as a Graduate Engineer. By letter dated 4th December, 2025, the Petitioner challenged the advertisement contending in particular, that it excluded its members. Bachelor of Technology graduates who held the Bachelor of Technology Engineering degrees. The Petitioner required the Respondent to make a fresh call for applications after removing the requirement of registration by EBK. According to the Petitioner the requirement of registration by the EBK was discriminatory. By an external advertisement dated 9th December, 2025, the Respondent republished the earlier notice but changed the deadline for application to 29th December, 2025. The instant suit was filed on 18th December, 2025 and interim orders were granted on 31st December 2025 and affirmed by a Ruling delivered on 24th March 2026, whereas the Petitioner contended that the requirement of registration by the EBK was discriminatory towards its members, the 1st Respondent maintained that it acted in accord with its human resource instruments and the positions advertised were for Engineers registered under the Engineers Act. Puzzlingly, the Petitioner did not rely on the legal framework which governed its members including Registration. The issues for determination are: 1. Whether the Respondent’s advertisement for positions of Engineers (Roads) was discriminatory. 2. Whether the Petitioner is entitled to the reliefs sought. It is common ground that the two cadres of employees namely. Engineers and Engineering Technologist are governed by different statutes, namely Engineers Act and Engineering Technology Act respectively, which provide for registration and practice. While the preamble to the Engineers Act, 2012 states that it is an Act of Parliament to provide for the training, registration and licensing of Engineers, the regulation and development of the practice of Engineers and connected purposes, the preamble to the Engineering Technology Act, 2016 states that it is an Act of Parliament to make provision for the regulation, practice and standards of Engineering Technologist and Technicians and for connected purposes. From a legislative perspective, it is clear that Parliament perceived the two cadres as distinct in terms of training, qualifications and regulation and it follows that their roles in an organization differ as exemplified by the Respondent’s Career Progression Guideline approved by the Public Service Commission. Under the Engineers Act an Engineer means a person registered under the Engineers Act as a professional Engineer or consulting Engineer and who holds a valid license. Conversely, under the Engineering Technology Act an Engineering Technologist means a person registered under the Act as such. The Engineers Act defines Engineering to “mean the creative application of scientific principles to design or develop structures machines apparatus or manufacturing processes or works utilizing them singly or in combination or the construct or operate the same with full cognizance of their design or to forecast their behaviour under scientific operating conditions or aspects of intended functions economics of operation and safely to life and property” On the other hand section 2 of the Engineering Technology Act defines Engineering Technology “means part of the Engineering to Profession in which knowledge of applied mathematic and natural science gained by higher education experience and practice is devoted to application of engineering principles and the implementation of technology education for the professional focusing primarily on analysing applying implementing and improving existing technologies and is aimed at preparing graduate for the purpose of Engineering Technology practices closest to product improvement manufacturing and engineering operational functions” It requires no emphasis that the two cadres of graduates are trained differently the intended outcome is different and their role in an undertaking is different. Whereas engineering focuses on conceptual imperatives in structures, machines manufacturing and other processes through scientific principles and involves creation and construction engineering technology is part of the engineering profession concerned with application of applied mathematics and natural science to the application of engineering principles and implementation of technology. The foregoing definitions lay it bare that the two professions are distinct and intended to be so. While engineers are defined as creators, designers and developers Engineering Technologists are defined as implementors of technology education. Although the Petitioner averred and submitted that is members could discharge the roles or responsibilities of set out in the Job Description of Engineer (Roads) Grade 7, it availed no verifiable evidence on the averment or submission. Evidence of the training the Engineering Technologies receive and their demonstrable competences would have embellished the averment and submission. It is common ground that both the Engineers Board of Kenya (EBK) and the Kenya Engineering Technology Registration Board (KETRB) actively participated in the conceptualization and development of the curriculums taught by universities which offer either of the courses or both and from the operational legal framework, it is discernible that the Engineering Technologists Act was not intended and did not establish a parallel profession to Engineering and registration by EBK could not arise as there was a prescribed registration procedure as the Supreme Court held in **Martin Wanderi & 9 others v Engineers Registration Board & 4 others (Supra).** Having demonstrated that parliament intended and established the framework for a graduate to be registered as an Engineering Technologist and thus join the profession. Under the Engineering Technology Act an Engineering Technologist is not regarded as an engineer and is supposed to work under the supervision of an engineer and the same applies to anengineering technician. It is trite law that the provisions of Article 27 of the Constitution of Kenya and section 5(3) of the Employment Act prohibit direct and indirect discrimination generally and in an employment relationship respectively. An employer is prohibited from discriminating an employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status. Blacks Law Dictionary, 10th Edition defines discrimination as; *“Failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”* In **Peter K. Waweru v Republic (2006) eKLR** the court stated’ *“…Discrimination means affording different treatment to different persons attributable wholly or mainly to their description whereby persons of such description are subject to … restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description…”* The foregoing notwithstanding, it is trite that the law does not prohibit discrimination in all instances. It only prohibits unfair discrimination which may be direct or indirect. See also **Nyarangi & 3 others v Attorney General (2008) KLR 688 and Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR).** It is trite law that whenever a party alleges or claims discrimination by another, the party is obligated to discharge the initial burden of proof by showing that there was a *prima facie* case of discrimination for the burden of disproving the allegation to shift to the other party as held in **Gwer and 5 others v Kenya Medical Research Institute & 3 others (2020) KESC 66 (KLR)** and **National Social Security Fund v Peter & 47 others (2023) KECA 804 (KLR).** In the instant case, the petitioner bore the initial burden of proof. It is trite law that for a finding of discrimination to be arrived at, it must be demonstrated that the applicant(s) and the comparators were similarly circumstanced. The petitioner has not adduced any verifiable evidence to show that persons who graduate with a degree in Engineering Technology and those who graduate with a Bachelor of Science in Engineering be it Civil, Mechanical Electrical Structural, Mechanics, too Chemical software or industrial among others were similarly circumstanced. As adverted elsewhere in this judgment, the petitioner did not avail evidence to show that the congruence between training of the two professions, core units depth and width, licensing of the program and duration among others must significantly and At the risk of repetition, it is clear that the two qualifications were conceptualized and implemented differently and whereas there may be shared courses, they were not intended to produce professional with identical skills and competences and at the same level. The differentiated regulatory frameworks are unambiguous as to the parliament’s intent and granted that the Respondent had Career Guidelines for Engineering Technologists and Technicians it would appear to follows that the Respondent intended to recruit 27 Engineers (Roads) among other positions in this instant. The Job specifications stated that the preferred disciplines were Civil and Civil and structural or its equivalent qualifications. The petitioner provided no evidence before this court to show that the qualifications of its members were equivalent to Civil Engineering or Civil and structural Engineering from a recognised institution. Since the Respondent had positions for Engineer (Roads), the requirement of registration by the Engineering Board of Kenya (EBK) as a Graduate Engineer was essential for purposes of determining the professional standing of the applicant. For the above reasons it is the finding of this court that the Respondent’s advertisement was lawful, just, reasonable and consistent with its human resource instruments and the law. The court further finds that the Petitioner has failed to prove that its members were unfairly discriminated by the Respondent. The upshot of the foregoing is that the Petitioner’s petition dated 16th December 2025 is unsustainable and it is accordingly dismissed with no orders as to costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH 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.** **DR. JACOB GAKERI** **JUDGE**