https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1430

Mohamed v Ministry of Interior and Coordination of National Government & 5 others (Employment and Labour Relations Petition E157 of 2024) [2026] KEELRC 1430 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1430 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E157 of 2024 JW Keli, J May 22, 2026 Between Mahdi Abdi Mohamed Petitioner and Ministry of Interior and Coordination of National Government 1st Respondent County Commissioner Wajir County 2nd Respondent Deputy County Commissioner Habaswein Sub- County 3rd Respondent The Hon. Attorney General 4th Respondent and Yusuf Sugal Omar 1st Interested Party Public Service Commission 2nd Interested Party Ruling 1.The Petitioner/Applicant vide Notice of Motion application dated 10th December 2025 brought under the provisions of Articles 2, 10,23, 47, 159, 232, 234, 252 and 259 of the Constitution; Sections 5 and 21 of the Judicature Act; the Contempt of Court Act (as applicable); the Employment and Labour Relations Court Act; and the Fair Administrative Action Act, sought the following orders:-a.Spent.b.A declaration that the Public Service Commission (PSC) has deliberately failed, refused and/or neglected to comply with the Judgment of this Honourable Court delivered on 27th November 2024.c.An Order of Mandamus compelling PSC to immediately implement the said Judgment, by:i.Making a final determination based strictly on the original criteria; andii.Appointing the Petitioner forthwith if found to have been the best suited or only qualified candidate.d.A declaration that PSC acted unlawfully and in breach of Articles 10, 47 and 232 by administratively removing the mandatory age-limit requirement to favour an Interested Party.e.An order restraining PSC from altering, manipulating or retrospectively adjusting recruitment criteria, including age requirements, in order to defeat the Judgment.f.An order directing PSC to file a compliance report within 14 days detailing steps taken to comply with the Judgment.g.This Honourable Court finds the Public Service Commission, its Chairperson, Commissioners, Chief Executive Officer and Secretary, jointly and severally, in contempt of court for wilful disobedience of the Court's Judgment dated 27November 2024.h.Upon finding them in contempt, the Court do impose appropriate sanctions, including:i.Fines against PSC and/or its responsible officers;ii.Personal liability against officers who authorized or participated in the disobedience;iii.Any custodial sanctions that the Court may deem just and necessary to safeguard judicial authority. 2.Costs of this application be in the cause. 3.The Application was supported by the affidavits sworn by the Petitioner on 10th December 2025. 4.Grounds of the applicationa.Despite being aware of the court orders, the Respondents together with the Public Service Commission wilfully, deliberately, and consistently refused, neglected, and/or failed to comply with the said lawful orders of this Court. The actions of the Respondents amount to blatant disobedience of court orders, which undermines the dignity, authority, and integrity of this Honorable Court and the rule of law.b.The continued disobedience of the court order is causing the Applicant ongoing prejudice, hardship, loss, injustice, and irreparable harm, hence this Application should be heard and determined promptly and the Respondent is compelled to obey the orders or face the sanctions of contempt of court.c.Due to the Respondent's unlawful actions and defiance, the purpose of the orders earlier granted is being defeated, and unless this Application is certified urgent and heard on priority, the Applicant stands to suffer gross injustice.d.That contempt of court proceedings are necessary to ensure compliance with Court orders and to safeguard the authority of the Court in line with Article 159 of the Constitution, Section 5 of the Judicature Act, and all enabling provisions of the law. Unless the Court intervenes urgently, the Respondent will continue with actions that are unlawful, prejudicial, oppressive, and contrary to the explicit directions of the Court.e.The application has been filed without delay once the Applicant became aware of the ongoing disobedience and violation of the Court order; and the Application is brought in good faith, is merited, and raises serious issues that warrant the urgent and immediate intervention of this Honorable Court.f.It is in the interest of justice, equity, and fairness that the orders sought in the application be granted to preserve the authority of the Court and protect the Applicant's rights.g.The Petitioner will suffer substantial loss if the orders sought herein are not granted. Response to the application 5.The application was opposed by the Respondents through a Replying Affidavit sworn by Paul Famba on 14th January 2026 on behalf of the Public Service Commission where they averred that:-a.The Public Service Commission derives its powers to appoint persons to hold offices in the public service and to confirm appointments, which powers may eb delegated in writing, from Article 234 (2) of the Constitution; Sections 31 and 33 of the Public Service Commission Act; and Regulation 5 of the Public Service Commission Regulations.b.On 4th December 2025, the Public Service Commission was notified of the Court’s judgment in this case delivered on 27th November 2024 where it directed that:i.The Public Service Commission in exercise of its Constitutional powers and functions, or any of them, as found herein as under Articles 234 and 252 (1) (a) and (b), should intervene in the instant case and within the Commission's regulatory or audit systems, towards determining the fate of the concluded interviews, recruitment and selection and if found that the Petitioner was indeed the best suited or only qualified candidate, he be appointed to the vacancy accordingly and if not, the Commission may direct as appropriate with respect to filling of the vacancy.ii.The directive conveyed by the County Commissioner for Wajir by letter Ref. No. ADM2/6. Vol. I dated 17th September, 2024titled "RE-ADVERTISE VACANT POST OF ASSISTANT CHIEF II" was unreasonable as unconstitutional as found herein and null and void ab-initio.iii.The 1st and 4th Respondents to jointly or severally pay the petitioner's costs of the petition.c.The Commission through letter dated 11th December, 2024 wrote to the Principal Secretary State Department for Internal Security and National Administration at the Ministry of Interior and National Coordination requesting for information and all the relevant documents relating to the recruitment process to enable it comply with the directions of the Court.d.The Ministry through letter dated 19th February, 2025 and received by the Commission on 26th February, 2025, responded to the Commission's letter forwarding the information as requested. However, all the details were not attached and the Commission requested for more information which was later forwarded through email.e.The Commission in its 2846th meeting held on 28th May, 2025 considered the matter and noted the following:i.The vacancy for the position of Assistant Chief Getwab Sub-location arose when Mr. Yussuf Noor Mohamed P/NO.2013008665 was dismissed from the service on account of desertion of duty with effect from 21st June, 2021 vide the Cabinet Secretary’s letter refer no C/2013008665/6 dated 11th October,2022.ii.The position was advertised and none of the applicants met the required criteria that led to re-advertisement on 11th August, 2023 and deadline for applications in the advertisement was 1st September, 2023.iii.A total of Nine (9) candidates applied for the position and Seven (7) were shortlisted.iv.On 22nd November, 2023 Interviews were conducted and Four (4) out of Seven (7) shortlisted candidates attended the interview and were scored as follows: Abdirahman Ali Saman-54% Mahdi Abdi Mohamed-75% Yussuf Sugal Omar-91% Abdi Ibrahim Farah-69% v.The interviewing panel upon conclusion of the interviews recommended the candidates on merit as follows: Yussuf Sugal Omarii. Mahdi Abdi Mohamed Abdi Ibrahim Farah vi.On 22nd November, 2023, the Deputy County Commissioner recommended the appointment on Yussuf Sugal Omar; the County Commissioner on 27th May, 2024 concurred with the recommendation and the Regional Commissioner on 19th June 2024 also concurred with the recommendation.vii.On 19 June, 2024, the Regional Commissioner wrote to the Principal Secretary forwarding a list of recommended candidate for appointment for various positions incuding that of Assistant Chief Getwab Sub-location.viii.On 19th August, 2024, the Principal Secretary, wrote to the Regional Commissioner asking that the post of Assistant Chief Getwab Sub-location be re-advertised and directed that the Regional Commissioner should take into account issues of clan dynamics during the recruitment and selection process. The Commission therefore resolved that:a.There was no legal basis for the Authorized Officer to decline the appointment of the successful candidate and proceed to direct that the position be re-advertised.b.Mr. Yusuf Sugal Omar be appointed to the position of Assistant Chief Getwab Sub-location as he was found merited for appointment to the position.c.The Authorized Officer, pursuant to authority delegated to his office by the Commission, issues the officer with the requisite appointment letter immediately and in any event by 13th June,2025.This decision was communicated to the Principal Secretary vide letter dated 4th June,2025.f.The Commission while considering the matter as directed by the Court was alive to its duty under Article 249 of the Constitution and that it is subject to the Constitution and that it is subject to the law in undertaking its mandate.g.The Commission did not consider the issue of age as provided in the advertisement as the same would amount to discrimination contrary to Article 27(4) of the Constitution and was properly guided by the decision of the Court in High Court at Busia in Petition No. E004 of 2023: Peter Kabinga Orogo v The Chairman Board of Directors, Kenya Revenue Authority & Others in its judgment delivered on 1st March 2024 where it found that:“b)a declaration that the 9th October advertisement for 600 graduate trainees to the extent it limits employment opportunities to youth of 28 years, is unconstitutional, as it offends the preamble to the Constitution and Articles 10, 27,56,232 and 260 of the Constitution."h.The Commission was further guided by its resolution in its 2797th meeting held on 7th March, 2024 that resolved that the age requirement of appointment to the positions of Assistant Chief Il and Chief II as provided in the Revised Scheme of Service for National Government Administrative Officers, October, 2015 has been removed as the same is unconstitutional.i.The Commission has, when it has been brought to its attention as in this matter that the advertisement placed was discriminatory, appoints the most qualified candidate in the interview on the basis of merit as provided under Article 232 of the Constitution and Section 36 of the Public Service Commission Act.j.The Honourable Court directed that the Commission in exercise of its Constitutional powers and functions, or any of them, as found herein as under Articles 234 and 252 (1) (a) and (b), intervenes in the instant case and within its regulatory or audit systems, towards determining the fate of the concluded interviews, recruitment and selection and if found that the Petitioner was indeed the best suited or only qualified candidate, he be appointed to the vacancy accordingly, and if not the Commission may direct as appropriate with respect to filling of the vacancy.k.It is the Commission’s position that it complied with the whole of the Court’s judgment in line with the Constitution and the law, and appointed the Interested Party to the position, as he was the best suited and qualified candidate having emerged position 1 in the interview and having been recommended for appointment. Decision 6.The present application emanates from the judgment of the Court delivered on 27th November 2024. It is indeed true that the Court held that:“i.The Public Service Commission in exercise of its Constitutional powers and functions, or any of them, as found herein as under Articles 234 and 252 (1) (a) and (b), should intervene in the instant case and within the Commission's regulatory or audit systems, towards determining the fate of the concluded interviews, recruitment and selection and if found that the Petitioner was indeed the best suited or only qualified candidate, he be appointed to the vacancy accordingly and if not, the Commission may direct as appropriate with respect to filling of the vacancy.ii.The directive conveyed by the County Commissioner for Wajir by letter Ref. No. ADM2/6. Vol. I dated 17th September, 2024 titled "Re-advertise Vacant Post of Assistant Chief II" was unreasonable as unconstitutional as found herein and null and void ab-initio.iii.The 1st and 4th Respondents to jointly or severally pay the petitioner's costs of the petition.” 7.The Applicant insists that the Respondents and the Public Service Commission have disobeyed the orders of the Court and should therefore be cited for contempt of Court. It falls upon this court, therefore to determine whether there has been non-compliance with Court orders. The court noted that vide letter dated 5th September 2025, the applicant was informed through his lawyer that he was not the most qualified, having been No. 2 in the interviews(annexed by the applicant as MM2), and that Yusuf Sugal Omar was ranked No. 1 after the competitive recruitment process. The applicant challenged the decision of the Commission on the basis that the said Yusuf did not meet the age criteria in the advertisement. To counter this complaint, the Commission stated- ‘The Commission was further guided by its resolution in its 2797th meeting held on 7th March, 2024 that resolved that the age requirement of appointment to the positions of Assistant Chief Il and Chief II as provided in the Revised Scheme of Service for National Government Administrative Officers, October, 2015 has been removed as the same is unconstitutional.’ 8.The Commission directed that Yusuf be appointed as the Assistant Chief based on merit competitive recruitment. Article 232(1)(g) of the Constitution provides as a principle of public service as follows-‘subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;’. Article 27 of the Constitution provides for age as a ground of discrimination as follows- ‘The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.’’ The court finds that the decision of the Public Service Commission was consistent with the Constitutional principles of public service (Article 232) and further that it complied with the Court's judgment. 9.The court holds that the Public Service Commission complied with the court order. For the foregoing reasons, the Notice of Motion dated 10th December 2025 lacks merit and hereby dismissed with costs. 10.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: OtienoApplicant : -Respondents: Karbolo2nd Interested Party- Odukenyi h/b Wangechi