https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1753

M’Kuma & another v Co-operative University of Kenya (Cause E150 of 2026) [2026] KEELRC 1753 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1753 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E150 of 2026 CN Baari, J June 25, 2026 Between Dr. Ezekiah Kimani M’Kuma 1st Claimant James Muthuci Nyaga 2nd Claimant and The Co-Operative University of Kenya Respondent Ruling 1.Before Court is the Claimants/Applicants’ motion application dated 15th February, 2026, brought pursuant to Section 12(1), (2), (3) & (4) of the Employment & Labour Relations Court Act, wherein the Claimants/Applicants seek the following orders: -i.That Pending the hearing and determination of this suit, the Respondent be restrained from persecuting or victimizing the Claimants for filing this claim or for agitating for their rights either by way of disciplinary proceedings or in any other way.ii.Spentiii.That the Respondent be stopped from undertaking external advertisement and interviews for the position of Senior Assistant Registrar- Grade 13, Senior Assistant Accountant 1 Grade 10 pending the hearing and determination of this suit.iv.That the cost of this application be provided for. 2.The application is supported by the grounds on the face thereof and the supporting affidavit of Dr. Ezekiah Kimani, the 1st applicant herein, sworn on 15th February, 2026. 3.The Claimants/Applicants state that the 1st Claimant applied for promotion to the position of Senior Assistant Registrar (Grade 13), while the 2nd Claimant and other colleagues applied for promotion to the position of Senior Assistant Accountant I (Grade 10) pursuant to an internal advertisement. They contend that although the 1st Claimant underwent a rigorous interview process, the 2nd Claimant and his colleagues' applications were summarily rejected. 4.They further aver that the Respondent delayed communicating the outcome of the recruitment process and ultimately declined their promotions on what they consider to be flimsy and unjustified grounds. 5.The Claimants contend that the 1st Claimant was denied promotion on the grounds that he lacked excellent communication, report, and minute-writing skills, the ability to work under minimal supervision, and strong analytical and managerial skills. 6.They further state that the 2nd Claimant and his colleagues were informed that their applications for promotion to Senior Assistant Accountant I (Grade 10) were unsuccessful because they lacked ICPAK membership. According to the Claimants, they met the published promotion criteria and were therefore qualified for the positions, making the Respondent's actions discriminatory. 7.They also aver that when called upon to explain the 1st Claimant's non-promotion, the Respondent relied on an undisclosed confidential report from his supervisor and failed to produce the interview criteria, score sheets, or marking scheme. 8.The Claimants further allege that the Respondent admitted that the 2nd Claimant and his colleagues were not shortlisted due to a mix-up in its records and promotion criteria, despite having qualifications similar to a colleague who was promoted. They contend that the interview panels considered factors that were neither included in the advertised requirements nor disclosed to the applicants, and introduced additional criteria that did not form part of the job description or promotion requirements. 9.The Claimants further assert that the Respondent failed to produce any cogent evidence to justify its decisions, that the reasons advanced for denying them promotion were unfounded, and that after realizing it had discriminated against them, the Respondent sought to compel them to undertake training they had already completed. 10.The Claimants aver that unless restrained by the Court, the Respondent will continue using its actions to persecute and victimize them in pursuit of its objectives. They therefore seek the Court's protection and maintain that it is in the interests of justice that the application be allowed. 11.The Respondent opposed the application vide a Replying affidavit sworn by one Prof. Kamau Ngamau on 2nd March, 2026. 12.The Respondent states that it was granted its Charter on 7th October 2016, which delineates the respective roles of the University Council and the University Management Board. It avers that under Section 19(10)(c) of the Charter, the University Council is responsible for determining the methods of recruitment, appointment, and promotion of staff, while under Section 23(2), the Management Board is responsible for the day-to-day management of the University and implementation of its policies. 13.The Respondent further states that its recruitment processes are governed by the Constitution of Kenya, the Employment Act, the Universities Act, the University's Charter, Statutes, Human Resource Policy Manual, and the University Staff Appointments and Promotions Criteria, 2013. 14.The Respondent avers that the application seeks orders restraining it from undertaking external advertisement and interviews for the positions of Senior Assistant Registrar (Grade 13) and Senior Assistant Accountant I (Grade 10), as well as orders preventing it from persecuting or victimizing the Claimants pending the hearing and determination of the suit. It avers that the orders sought offend Article 232(1)(g) of the Constitution, which requires that appointments and promotions in the public service be based on fair competition and merit. 15.The Respondent contends that the application fails to satisfy the threshold for the grant of an interlocutory injunction as established in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. It argues that the Claimants have not established a prima facie case with a probability of success, demonstrated that they will suffer irreparable harm, or shown that the balance of convenience favours the grant of the orders sought. 16.In particular, the Respondent maintains that there is no external advertisement in existence to be restrained, rendering the application speculative. It further asserts that the Claimants' allegations are based on mere apprehension and misrepresent the requirements of Article 232 of the Constitution. 17.The Respondent also argues that the Claimants have not demonstrated any irreparable harm, noting that they remain in its employment, continue to receive their salaries and benefits, and are not facing any disciplinary proceedings. It therefore dismisses the allegations of persecution or victimization as speculative and affirms that it respects the Claimants' constitutional right to seek judicial redress without fear of retaliation. Accordingly, it submits that the balance of convenience lies in its favours. 18.The Respondent further avers that recruitment, appointment, and promotion of staff are matters of managerial prerogative and urges the Court not to interfere with its discretion unless there is clear evidence of illegality, irrationality, or procedural impropriety, none of which, it contends, has been demonstrated by the Claimants. 19.The Respondent avers that it complied with a court-sanctioned consent by conducting the requisite internal recruitment process and promoting qualified candidates. It maintains that the 1st Claimant was lawfully interviewed but failed to attain the minimum pass mark, while the 2nd Claimant was not shortlisted for promotion to Grade 10 because he did not meet the mandatory qualifications at the time of his application. It contends further that both Claimants' appeals were considered and dismissed. 20.The Respondent therefore contends that the recruitment process was fair, merit-based, and conducted in accordance with its governing laws and policies. It argues that the Claimants have not established a prima facie case or satisfied the requirements for an interlocutory injunction, and consequently prays that the application be dismissed with costs. 21.The Claimants, through a further affidavit, maintain that the application raises genuine legal issues concerning fairness in recruitment and promotion and is brought in good faith to enable the Court to determine the real dispute. They deny the Respondent's allegations, describing the replying affidavit as containing falsehoods, misrepresentations, and misleading legal arguments intended to divert the Court from the substantive issues. 22.The Claimants contend that the Respondent has failed to provide valid reasons for rejecting their applications and has not rebutted their allegations of discrimination. They further allege that the Respondent introduced new and undisclosed promotion criteria during the recruitment process, contrary to the advertised requirements. 23.On the failure to shortlist the 2nd Claimant, they assert that he was duly qualified for the Grade 10 position, was encouraged by the Respondent to apply, and was already a registered Certified Public Accountant of Kenya (ICPAK member) at the material time. They further contend that the Respondent later frustrated attempts to clarify his eligibility. 24.The Claimants further state that the 2nd Claimant has since been subjected to victimization through redeployment for instituting the present suit. They therefore urge the Court to disregard the Respondent's replying affidavit, find that they have been unfairly treated, and grant the orders sought to safeguard their rights and ensure fairness in the promotion process. 25.Parties urged the application through written submissions, which have been duly considered. Analysis and Determination 26.The singular issue for determination is whether the Claimants/Applicants have satisfied the threshold for the grant of interlocutory injunctive orders. 27.The principles governing the grant of interlocutory injunctions are well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success, prove that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages, and where the court is in doubt, it should determine the matter on a balance of convenience. 28.The foregoing principles were affirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where the Court emphasized that the three conditions are sequential and distinct, so that if no prima facie case is established, the Court need not consider the other two limbs. Further, in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal defined a prima facie case as one which, on the material presented, demonstrates an apparent infringement of a right calling for rebuttal by the opposite party. 29.The Claimants' complaint is that the Respondent unlawfully and discriminatorily denied them promotion by relying on criteria that were either undisclosed or extraneous to the advertised requirements. 30.Conversely, the Respondent contends that the 1st Claimant was shortlisted, interviewed, and that he scored 66.5%, below the prescribed pass mark of 70%, while the 2nd Claimant was not shortlisted on the basis that at the time of his application, he did not satisfy the mandatory requirements relating to ICPAK membership and the prescribed experience required for the job. 31.The Respondent argues further that the recruitment process was conducted pursuant to the University's Charter, Human Resource Policy, and the applicable Promotion Criteria. 32.The Claimants dispute those assertions and maintain that the Respondent altered the promotion criteria midstream, relied on undisclosed considerations, and discriminated against them. They further contend that the 2nd Claimant possessed the requisite ICPAK membership and that the Respondent itself advised him to apply for the impugned position. 33.The foregoing arguments depict competing factual positions that raise substantial questions regarding whether the recruitment process complied with Articles 27, 41, 47, and 232 of the Constitution. They cannot, in my view, properly be resolved at an interlocutory stage without testing the documentary evidence and oral testimony at trial. 34.As observed by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a prima facie case does not mean one that must succeed, but one disclosing an arguable infringement deserving judicial investigation. 35.Accordingly, the Court is satisfied that the pleadings disclose arguable issues regarding the transparency, fairness, and legality of the promotion process sufficient to meet the first limb in the Giella case. 36.The second requirement is whether the Applicants have shown that they stand to suffer injury incapable of adequate compensation by damages. With regard to the intended external advertisement, the Court notes that the Respondent disputes that any external advertisement presently exists. Even assuming one were contemplated, promotion disputes ordinarily attract remedies including declarations, orders of promotion where appropriate, compensation, or damages after trial. 37.Consequently, the mere possibility that the positions may subsequently be filled does not automatically establish irreparable harm. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others (Supra) reiterated that where damages are an adequate remedy, an injunction should ordinarily not issue. 38.The position is, however, different concerning the prayer seeking protection from victimization. Section 46(h) of the Employment Act expressly prohibits an employer from terminating or taking adverse action against an employee merely because the employee has initiated or participated in legal proceedings against the employer. Equally, Article 41 of the Constitution guarantees every employee the right to fair labour practices. 39.In my view, granting an order restraining recruitment into public offices at this interlocutory stage would substantially determine the dispute before hearing evidence and would interfere with the Respondent's statutory mandate to recruit staff. Such an order should only issue upon a clear demonstration of illegality, which has not been established at this stage. 40.On the other hand, preserving the status quo by directing that the Claimants should not suffer retaliation merely because they have invoked the Court's jurisdiction does not in any way prejudice the Respondent, but merely reinforces the constitutional and statutory obligations already imposed upon the Respondent. 41.In the upshot, the Court makes the following orders:-a.That an order be and is hereby issued restraining the Respondent from victimizing, or subjecting the Claimants to disciplinary or other adverse employment action, for reason of filing or prosecuting this suit. For the avoidance of doubt, this order does not prevent the Respondent from undertaking lawful disciplinary or administrative action founded on legitimate grounds unrelated to these proceedings and undertaken in accordance with the law and due process.b.The prayer seeking to restrain the Respondent from undertaking external advertisement and interviews for the positions of Senior Assistant Registrar Grade 13 and Senior Assistant Accountant I Grade 10 is declined.c.Costs of the application shall abide the outcome of the main cause. 42.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Owino present for the Claimants/ApplicantsMr. Olaibon present for the RespondentMs. Esther S -C/A