https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1578

Warui v Office of Director of Public Prosecutions & 2 others (Judicial Review Application E012 of 2026) [2026] KEELRC 1578 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1578 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E012 of 2026 M Mbarũ, J June 11, 2026 Between James Mungai Warui Applicant and Office of Director of Public Prosecutions 1st Respondent Public Service Commission 2nd Respondent Attorney General 3rd Respondent Ruling 1.The applicant, James Mungai Warui filed an application dated 5 May 2026 seeking the following orders:a.Spent.b.Pending her hearing and determination of the suit, the advertisement of the position of Inspector General (Corporations) in MyGov Issue No. 42/2025-2026 dated 5 May 2026, be suspended.c.The Public Service Commission be directed to consider confirming the Applicant to the said position, having regard to his long service and acting appointment. 2.The application is supported by the applicant through his Supporting Affidavit and on the grounds that, on 30 January 2026, he moved the court through an Originating Motion contesting his exclusion from the shortlist for interviews for the positions of Senior Deputy Director of Public Prosecutions and Deputy Director of Public Prosecutions. Nonetheless, the applicant sought to vindicate his long service, merit and eligibility for promotion to the newly established higher offices. The suit is a dignified determination. 3.The applicant avers in his affidavit that while his application is pending determination, he discovered through MyGov Issue No. 42/2025-2026 dated 5 May 2026 that the Public Service Commission (PSC) has advertised the office in which he is currently serving in an acting capacity. In order to preserve his rights and legitimate expectations, the applicant is seeking the court to preserve the position by suspending the advertisement. The suspension is necessary to ensure that the court addresses the real controversy between the parties and to secure the applicant’s career progression and against a miscarriage of justice. 4.The applicant avers that he has been serving in the contested office in an acting capacity for a considerable period, he has discharged the functions of the office diligently and competently, and the court should direct the PSC to confirm him to the position following accrued service, to safeguard the legitimate expectation and ensure constitutional and statutory rights to fair labour practices. 5.The 2nd respondent submitted that, in 2024, the PSC wrote to the applicant and clarified that he had no substantive office with the PSC and that he remained an officer with the ODPP, the 1st respondent. He has herein challenged the principal's lack of promotion, the ODPP. 6.The 2nd respondent submitted that the applicant was posted to the office of State Corporations as head of service upon recommendation on condition of 6 months. The office had to be declared vacant and be competitively filled. This was only done in 2026 through the public advertisement, which the applicant has challenged. 7.In July 2024, the PSC learned that the applicant was acting and to address the gap, his acting position was extended by 3 months. Such an acting position has lapsed, and the PSC has not appointed anyone to that position. Any further engagement of the applicant by the State Corporation is unlawful. The position of Inspector General should be filled competitively in accordance with Article 232 of the Constitution. 8.A secondment is not permanent, and the applicant remains an employee of the ODPP. Determination 9.The applicant is seeking an order from the court suspending the advertisement for the position of Inspector General (Corporations), issued on 5 May 2026, on the basis that he has challenged his exclusion from the shortlist for interviews for the positions of Senior Director of Public Prosecutions and Deputy Director of Public Prosecutions. These matters are pending determination. Before this is resolved, while the applicant is the acting Inspector General (Corporations), the same was advertised with fewer benefits than he would enjoy in his current position; hence, the recruitment should be suspended. 10.The applicant admits that he is the acting Inspector General (Corporations). 11.The applicant also moved the court by motion dated 29 January 2026, seeking to suspend the promotion interviews for the positions of Senior DPP and Deputy DPP. In this motion, the applicant seeks an order of mandamus directing the ODPP to receive his application, consider it, and prepare the shortlist for interview for the position(s). 12.Thus, the main cause of action herein is the motion dated 29 January 2026. 13.It is further appreciated that the applicant has been in an acting position for the last 4 years, since his first appointment on 13 April 2023, as Inspector General (Corporations). This was to last for 6 months. The acting role was renewed in July 2024 for 3 months. Since he has remained in the same acting office. 14.Under the Public Service Commission Act, a deployment from one office to another in the public service does not re-designate the officer. The substantive position holds until written communication from the other substantive office. The public officer thus retains his employment with the principal. 15.Section 2 of the Public Service Commission Act defines this deployment as follows:Provided that the posting, deployment or secondment of a public officer from one duty station to another in the same grade in the public service shall not be regarded as a re-designation;Further, a secondment is defined to mean:“secondment" means an arrangement in which a pensionable employee is temporarily released from an organisation within the public service to another organisation which does not have reciprocal pension arrangements, to provide critical skills or acquire new skills while preserving the pension rights of the employee. 16.At the heart of a secondment is the temporal release on condition that the principal retains the officer, who may be recalled after the tenure is complete.On the other hand, transfer of service is allowed as follows:“transfer of service" means the movement of appointment of a pensionable employee from one public service organization to another, which has reciprocal pension arrangements and has been declared a "Public Service" for purposes of preserving the employee's previous pensionable services; 17.In the letter dated 13 April 2023, the Director of Public Prosecutions communicated to the applicant his appointment as Inspector General of State Corporations and indicated as follows:I refer to a letter Ref. No. … dated 4 April 2023 informing your appointment as Inspector General, State Corporations under the Office of the Prime Cabinet Secretary.This is to inform you that the request for Transfer of Service to the Office of the Prime Cabinet Secretary will be submitted to the ODPP Advisory Board for consideration. Meanwhile, you are hereby released to take up your appointment as Inspector General, State Corporations, after proper handover to the Deputy Director, Public Prosecutions, Conventional and Related Crimes Department. … 18.Following the letter above dated 13 April 2023, the Prime Cabinet Secretary, through the office of the Principal Secretary, issued the applicant letter dated 24 April 2024 on his Acting Appointment to the Post of Inspector General State Corporations and which stated that the PSC, through a letter dated 17 March 2023, had approved the same as an acting position for 6 months before the post is substantively filled. 19.Further, through a letter dated 28 April 2023, the Prime Cabinet Secretary informed the applicant that he would be the Acting Inspector General, State Corporations, with effect from 26 April 2023, for a period of 6 months. He would be paid an acting allowance at 20% of his PSC salary per month from the date of his acting appointment. 20.With his appointment, the applicant’s documents were transferred by letter dated 19 June 2023 to his acting role and deployment as Acting Inspector General, State Corporations. 21.Additionally, the PSC, through a letter dated 30 August 2024, clarified to the applicant that his appointment to the office of Acting Inspector General of State Corporations was on an acting basis. He had not occupied the substantive position of Inspector General, State Cooperation, and he remained the Senior DPP with the 1st respondent. 22.In Sammy Osundu Likaroni & others v Judicial Service Commission & others, Petition No. In E079 of 2020, the court addresses the question of the deployment and transfer of services, holding that in employment and labour relations, an employer may organise its business and operations to promote productivity and ensure the maximum utilisation of all available resources for maximum returns. Human capital is one such resource that must be organised and reorganised as necessary to realise its full potential and achieve optimal productivity. 23.In the instant case, the letters to the applicant allowing him to hold the office of the Inspector General, state Corporations and clarified by the PSC as an acting position through a letter dated 30 August 2024, were clarified. 24.I take into account that on 4 February 2026, parties attended court and were guided. 25.It will serve justice for the court to hear the main motion herein and address the issue in dispute on the merits. 26.Orders sought in the interim shall not issue, save that the main motion shall be heard on a priority basis. DELIVERED IN OPEN COURT THIS 11TH JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………… and………………………………………………