https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2043

Nyakeri v Kenya Revenue Authority (Judicial Review E045 of 2026) [2026] KEELRC 2043 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2043 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review E045 of 2026 JK Gakeri, J July 16, 2026 Between Brian Omeoria Nyakeri Petitioner and Kenya Revenue Authority Respondent Ruling 1.The Applicant filed the instant originating Motion on 27th April 2026 under Certificate of Urgency seeking various orders. 2.The Originating Motion was expressed under various Articles of the Constitution, including Articles 22, 23, 41, 47, 50, 159, 162(2) (a) and 236 provisions of the Employment and Labour Relations Court Act, Fair Administrative Action Act, Law Reform Act, Kenya Revenue Authority Act and Order 53 of the Civil Procedure Rules. 3.The Applicant sought a total of fourteen (14) prayers, seven (7) of which were sought pending hearing and determination of this application all of which were spent once the court did not issue any order on 28th April 2026 when the matter came up under Certificate of Urgency. 4.The reliefs sought are:8.An order of Certiorari be issued to remove into this court and quash the decision contained in the Respondent’s letter Ref KRA/5/1002/5 (13727) dated 17th March 2026 as affirmed and maintained by the Respondent’s letter Ref. KRA/L&BS/ADM/950 dated 30th March, 2026, purporting to revoke and rescind the Applicants appointment and contract of service.9.A Declaration be issued that the said decision, together with its implementation through the threatened or commenced recruitment to fill the office is unlawful, unconstitutional, ultra vires, irrational unreasonable, procedurally unfair and null and void for contravening Articles 41, 47 and 236 of the Constitution, Fair Administrative Action Act, the Kenya Revenue Authority Act and the applicable law governing the Applicant’s appointment and employment.10.A Decraration that absent lawful Board authority duly shown, the 2nd Respondent had no power to revoke and rescind the Applicants Appointment and Contract of Service in the manner purported.11.An order of Prohibition prohibiting the Respondents from implementing, acting upon, enforcing or giving and further effect the impugned decision and from proceeding with any recruitment or appointment to the said office based on the premise that it is vacant.12.An Order of Mandamus Compelling the Respondents to recognize and give effect to the Applicant’s Appointment Letter and Contract of Service, to restore the Applicant to the office of commissioner, Business Strategy, Technology and Enterprise Modernization Department; and to restore all attendant rights, status and incidents of office including salary and benefits accruing under the appointment and contract.13.In the alternative to prayer 12, an order setting aside the impugned decision and remitting the matter to the lawful decision-maker for reconsideration strictly in accordance with the Constitution, Fair Administrative Action Act and the 4 rules of procedural fairness, within such period as the court may direct, and in the meantime the Respondents shall not treat the office as vacant or proceed with recruitment to fill it.14.The costs of this application be awarded to the applicant. 5.The Originating Motion is based on the grounds outlined on its face and the Supporting Affidavit sworn by the Applicant on 27th April 2026. 6.The Applicant’s case is that pursuant to an advertisement by the 2nd Respondent, he applied for the position of Commissioner, Business Strategy, Technology and Enterprise Modernization Department at the Kenya Revenue Authority, through PKF Consulting (K) Ltd and was invited for the first round of interviews on 15th October 2025 at PKF offices and was further invited to a psychometric assessment on 7th November 2025 at PKF Consulting (K) Ltd and a final interview by the 2nd Respondents Board of directors on 2nd December 2025 and declared the successful candidate. 7.The Applicant states that he was invited and met the Commissioner General of the 2nd Respondent and members of the Human Resource team at the 2nd Respondent’s office, was appointed Commissioner Business Strategy, Technology and Enterprise Modernization Department (herein after (BSTEM) on 11th December 2025 and entered into a contract of service with the 2nd Respondent under a three (3) year fixed term contract at a consolidated salary of Kshs.1,000,000.00 per month with gratuity, six months probationary period and terminable by one-months notice. 8.That on the same day the Chief Manager, Human Resource Management requested the Applicant to forward his Executive profile through WhatsApp and the Applicant obliged. 9.That subsequently, the Respondent sought a verification of the Master Degree “Characterized as a “Mini Master degree” (an executive programme delivered within IBM’s corporate learning framework and responded fully on 5th June 2026 that it was not a university awarded academic qualification. 10.Subsequently, the Respondent enquired on the Applicant’s engagement at Agile Cloud Ltd in terms of position, period salary and benefits and responded vide letter dated 8th January 2026, that he was a consultant as opposed to a permanent and salaried employee. 11.That the focus then shifted to the WhatsApp official profile and the MSC Programme and responded on the same day 8th January 2026 that the Msc programme at Nexford University was on-going although the words “on-going” had been omitted in the informal Executive Summary. 12.According to the Applicant, the Respondent’s Post-appointment enquiries and clarifications were improper and inconsistent with the requirements of fair administrative practice. 13.That by letter dated 9th January 2026 the Respondent deferred the Applicant’s reporting date of 12th January 2026 pending completion of the verification exercise and he would be notified of the outcome. 14.Subsequently, vide letter dated 26th January 2026 the Respondent widened the inquiry to include employment history, remuneration academic and professional qualifications and the applicant responded vide letter dated 1st February 2026. 15.The Applicant deponed that he was invited and appeared before the Human Resource Committee and a hearing took place on 3rd February 2026 but no minutes were availed. He averred that the respondent required equation of the IBM Min MBA by the Commission for University Education and by letter dated 17th March 2026 Ref.KRA/5/1002/5 (13727) the Respondents revoked and rescinded the Applicant’s Appointment and Contract of Service on the ground that he had no Masters Degree in the relevant field. The Applicant blamed the Respondent’s procedurally flawed verification process. Respondent’s Case 16.In opposition to the Originating Motion, the Respondents filed a Replying Affidavit sworn by Betty Mutile Kimeu, the Respondent’s Chief Manager Human Resource Management on 21st May 2026 who deponed that around 9th July 2025 she was appointed by the 2nd Respondent to coordinate the executive recruitment of Commissioners and Deputy Commissioners between the Consultant and the 2nd Respondent. 17.The affiant deponed that:The 2nd Respondents Board approved the job advertisement on 27th May 2025 and an advertisement was published on 7th July 2025 and“a Masters Degree in a relevant field” was one of the requirements over and above the professional and academic qualifications, requirements over experience in middle and Senior Management levels and a Bachelor’s degree.” 18.The affiant averred that the Respondents Human Resource Committee recommended Executive Recruitment Workplan for the vacant position of position of Commissioner (BSTEM) among others and the Board approved the same subject to confirmation by the Board and the short listed candidates for the commissioner BSTEM was approved by the Board on 2nd October 2025 9 candidates undertook the psychometric test after Board’s approval and the candidates were approved for board level interviews on 2nd December 2025, the board resolved that the Applicant be appointed Commissioner (BSTEM) announcement approved on 11th December 2025 and a Letter of Appointment and Contract of Service issued. 19.That the Applicant’s official profile submitted for release to the public indicated that he held an Msc in Digital Transformation yet in his application he had a Bachelors Degree in Computer Science Systems Engineering, Nazarene University, 2004, Mini MBA -2018 South African Development Centre & IBM Institute for Business value Professional membership with ISACA and Computer Society of Kenya and 20 years relevant experience. 20.That the 1st Respondent treated the Applicant’s Mini MBA-2018 as a Masters Degree from an academic Institution and he was bound to avail accurate details and his profile contained inaccurate and misleading information. 21.The affiant deponed that 2nd Respondent received an email from a whistleblower questioning the Applicant’s MBA and suitability for the position. 22.That vide letter dated 29th December 2025, the applicant was requested to provide the Masters Degree, name of university, Country, location, length of study and official transcripts. 23.That the Kenya National Qualifications Authority (KNQA) confirmed that the Mini MBA issued by IBM to the applicant was an non-regulated qualification offered on-line. 24.That on invitation by the 2nd Respondent the Applicant attend a hearing with his advocate and oral representations. 25.That on 9th March 2026 the Human Resource Committee recommended to the Board that the resolution of the Board appointing the Applicant to the position of Commissioner BSTEM be revised and the 1st Respondent’s Commissioner General to revoke the letter of offer of appointment of the Applicant on the basis that he was not qualified for the position. The 2nd Respondent’s Board resolved to revoke its resolution of 2nd December 2026 and the offer to the Applicant be revoked for being unqualified for the position and he was informed vide letter dated 17th March 2026. 26.The affiant deponed that the Applicant did not meet the mandatory qualifications for the position he applied for and it was his duty to present accurate information but misrepresented facts on his title at Agile Cloud (K) Ltdstatus of the Msc degree and overall and verification of the Applicants qualification as per the Executive Summary was necessary and misrepresentation of facts to the public could not be countenanced. 27.That the request for information the same day was intended to expedite internal on boarding processes and the Applicant misunderstood the importance of the Executive profile which is a part of accountability and was for publication to the general public. 28.The affiant further deponed that the Applicant was heard and made presentations and had no Masters Degree in a relevant field and the Respondent had the right to authenticate documents and information submitted by the applicant, the Respondents board made the decision that the Applicants appointment be revoked and its decisional was final being the highest decision-making body of the 2nd respondent. Applicant’s Submissions 29.On jurisdiction, Senior CounselMr. John Ohaga for the Applicant cited Article 162 (2) (a) of the Constitution of Kenya and Section 12 (1) and (3) of the Employment and Labour Relations Court Act as well as the decisions in Daniel N Mugendi v Kenyatta University & 3 others (2013) eKLR and Poly W. Gitimu v Republic & 2 others (2018) eKLR, the latter on judicial review. 30.Counsel urged that since the Board of directors was the highest decision-making organ according to the Respondent there was no other meaningful internal remedy to exhaust under the Fair Administrative Action Act. 31.Reliance was also placed on the decision Krystalline Salt Ltd v Kenya Revenue Authority (2019) eKLR, to urge that there was no available effective or adequate internal mechanisms and the court had jurisdiction to hear and determine the suit. 32.Concerning Article 236 of the Constitution of Kenya, counsel relied on the provisions of Section 6, 11 and 13 of the Kenya Revenue Authority Act on the appointment of the 2nd Respondent’s Commissioner General as well as Commissioners and Deputy Commissioners by the Board of directors, to urge that the officers hold office in the Public Service and were public officers by dint of Article 260 of the Constitution and further urge that the provisions of Article 236 were applicable to the Applicant and due process presupposed stable and intelligible case to answer, adequate notice of precise allegations, disclosure of material facts relied upon, a rational decision and reasons provided. 33.Reliance was placed on the Court of Appeal decision in Judicial Service Commission v Mbalu Mutava & another (2015) eKLR on the impact of Article 47 of the Constitution of Kenya, to submit that the 2nd Respondent commenced verification after the Applicant had been shortlisted, psychometrically tested, interviewed by the board, appointed and contracted and deferment of the reporting dated was specific as the office had crystallized and removal had to meet the prescribed threshold. 34.Counsel submitted that the shifting grounds and ad hoc reconstructions offended the guarantee against removal without due process. 35.As to whether the impugned process violated Article 47 and the Fair Administrative Action Act, specifically Section 6 and 7 of the latter, reliance was placed on the decisions in Dry Associates Ltd v Capital Markets Authority & another (2012) eKLR on fair administrative action as a constitutional imperative and Suchan Investment Ltd v Ministry of national Heritage & Culture & 3 others (2016) eKLR to urge that the court had jurisdiction to examine legality, rationality, relevance and fairness under Article 47 and Section 7 above and the Applicants relief was supervisory. 36.Counsel submitted that, the Respondents stated that they treated the Mini MBA as a Masters Degree yet the formal application disclosed that the Nexford Msc was on-going, reliance on the Executive profile claim that the Msc status lead to revocation of appointment to urge that a latter corrective process could only pass master if it was conducted scrupulously fairly and with clarity but it was not in this case. 37.As to whether the respondent’s were altering the nature of the dispute, counsel for the Applicant submitted that by its Replying Affidavit the Respondents were recasting the Qualifications dispute to one on fraud and dishonesty which was never put to the Applicant in the administrative process and the on-going MSC was disclosed as was the Mini MBA and the executive profile though inaccurate was after recruitment. 38.Counsel submitted that the respondent’s letter dated 8th January 2026 was not framed as a fraud or concealment charge and there was no reference of dishonesty and subsequently, the process was one of verification and clarification and on 30th March 2026 the respondent confirmed that the revocation was occasioned by the fact that the Applicant was not qualified for the position. Thus, a qualification case. 39.Counsel further relied on the provisions of Sections 43 and 47 (5) of the Employment Act and Sections 4(3) (a) and (a) of the Fair Administrative Action Act to urge that a person cannot be said to have responded to a charge not put before him citing Kaunda v Government of Malasya (1962) AC 322 on the right to be heard and R v Secretary of State for Home Department Ex parte Doody (1994) A.C 531 on the need to exercise administrative power fairly, to urge that no fact was concealed as the CV showed that the Msc was on-going and repeated the same later in his responses. 40.On the Mini MBA, counsel submitted that the fact that the Respondents may have misunderstood the Mini MBA as a Masters Degree was not tantamount to the allegation that the Applicant represented it as a university awarded Master Degree. That the respondent had not identified the false representation and how it was made. 41.On the Executive profile, counsel submitted that it was plainly inaccurate, was post appointment, was corrected and the Applicant explained that omission of the word on-going was unintentional. That the Respondent’s Affidavit stated that the Msc status was not the reason for the revocation. 42.It was submitted that if the respondents intended to allege fraud, fraudulent misrepresent action or concealment they ought to have provided particulars and fraud ought to be specifically pleaded and proved as held in Vihay Morjoria v Nansingh Madhusingh Darbar & another (2000) KLR 23, Ratilal Godhanbhai Patel v Lalji Makaji (1957) EA 314 and Kanange & 13 others v Koinange (1986) KLR 23. 43.According to counsel, the case of dishonesty, or false representation was never put to the Applicant as demanded by the demand letter Counsel urged the court to reject the allegation of misrepresentation and non-disclosure as they were mere clarifications. 44.Further, counsel submitted that the respondent’s record revealed the classic public law defects citing Municipal Council of Mombasa v Republic & Umoja ConsultantS Ltd (2002) eKLR on the focus of judicial review as there was material error of fact and factual confusion, respondents failed to take account of the most relevant material, the formal application, respondent dealt on collateral issues as opposed to the reason for revocation of the appointment, the decision was not rational and defeated a legitimate expectation that the respondent could have verified the original certificates presented during the interview and the decision was unfair. 45.Concerning the contract-employment law matrix, counsel relied on the provisions of Section 26 (2) 41, 43, 47(5) and 49 of the Employment Act on application of the more favourable terms, termination procedure, burden of proof and reliefs respectively, to urge that a concluded employment relationship cannot be terminated without reasons, fairness and consequences. 46.Counsel urged that the Respondent could seek refuge in the probationary clause and Section 42(1) of the Employment Act citing the three (3) Judge Bench in Kibuchi & 6 others v Mount Kenya University (2021) eKLR, to urge that probation does not displace constitutional fairness and characterization of the separation does not affect the demand for fairness. 47.As to whether the respondents should be restrained from filling the position, counsel relied on the provisions of Section 12(3) of the Employment and Labour Relations Act and Section 11(1)(i) of the Fair Administrative Action Act on temporary reliefs citing the decision in Munya v Kithinji & 2 others (2014) eKLR on conservatory Orders to urge that the decision applied on all fours to the circumstances of this case. 48.On comparative jurisprudence reliance was placed on the decisions in Council of Civil Service Unions v Minister for Civil Service (1985) AC 374 on the classical taxonomy of judicial review, namely; illegality, irrationality and procedural impropriety as useful tools of analysis. 49.Also cited was the South African decision in All Pay Consolidated Investment Holdings Pty Ltd v Chief Executive Officer South African Social Security Agency 2014 (1) SA 604 (CC), for the proposition that material irregularities cannot be dismissed simply because the administrator believes that the end result was correct. 50.As for the orders the court should grant, counsel urged the court to quash the unlawful revocation, preserve the office from refilling or in the alternative remit the matter for reconsideration otherwise the applicant was entitled to all the reliefs prayed for. 51.Counsel posed the following question. Did the respondents act lawfully, rationally and fairly when they undid their formal process? Respondent’s Submission 52.Counsel for the Respondent isolated two (2) issues for determination namely;i.Whether revocation of the Applicant’s Appointment and Contract of Service was lawful and fair; andii.Whether the Applicant is entitled to the reliefs sought. 53.On the 1st issue, counsel relied on the provisions of Section 45 (2) of the Employment Act on termination of employment and the decisions in Felix Mbolonzi Kioko v Director of Public Prosecutions (2020) eKLR and Walter Ogal Anuro v Teachers Service Commission (2013) eKLR to urge that in determining whether termination of employment was lawful, the correct parameters are substantive justification and fair procedure. 54.Concerning substantive justification, counsel submitted that the Respondent had justifiable reasons for the revocation and the applicant had no Masters Degree the submissions that the reasons were unstable was untrue and the issue of the Applicants qualifications came up during the onboarding stage and a notice to show cause required the Applicant to clarify three issues on employment and role at Agile cloud Ltd, salary and benefits at Agile cloud Ltd and academic and professional certificates. 55.Counsel submitted that the Applicant was bound to exhibit utmost good faith but procured employment through misrepresentation and revocation of the Appointment Letter and contract was justified. 56.Reliance was placed on the decisions in Adhiambo v Bank of Africa Kenya Ltd (2025) KEELRC 3695 (KLR), John Kisaka Masoni v Nzoia Suga Co. Ltd (2016) eKLR and Abdi Mohammed Daib v Kenya Ports Authority (2016) eKLR to urge that the Respondent had a valid and fair reason to revoke the appointment and contract. 57.Also cited was the decision of the South African Labour Court in Department of Home Affair & another v Nallovu & others DA11/2012 (2014) 2 ALAC 11 (2014) 9BLLR 851, where the court upheld the dismissal of an employee for misrepresenting that he possessed a Bachelor of Technology (Marketing) Degree, to urge that the Applicant mispresented that he was qualified for the position by having a Masters Degree when aware he did not have by listing the Mini-MBA under educational qualifications rather than professional and thus misled the Respondent to believe that it was an academic Masters Degree reality the Respondent debunked through verification of the qualification and led to the revocation of the Letter of Appointment Contract of Service and the Respondent had a valid reason to do so. 58.On procedure, counsel urged that it was fair in that the Applicant was notified of the reasons vide various letters which lead to a notice to show cause, was invited for an oral hearing, informed of his rights attended the hearing with an advocate and defended himself. 59.Counsel submitted that the Applicant’s contention that the Provisions of Article 41 and 236 of the Constitution of Kenya and Sections 4, 6, 7, 9 and 11 of the Fair Administrative Action Act had been violated for want of a stable and intelligible case for the Applicant to respond to, adequate notice of the precise allegations materials to be relied upon, fair opportunity to respond orally and in writing decision with reasons and a process free from material confusion was unsustainable in that the respondent had stable and intelligible issues to raise and the short timeline was intended to expedite the process for the applicant to report to work and did not complain about it. That the respondent disclosed the materials relied on and the applicant was accorded time to respond orally and in writing and the final decision was rational with reasons and the entire procedure used by the Respondent was fair. 60.Finally, counsel submitted that the Applicant was not entitled to the reliefs sought because the Respondent’s Board is the highest decision-making body and there was no review or appeal mechanism above the board, certiorari would be an order of reinstatement of the Applicant to a position he was not qualified to hold, the prayer for prohibition was untenable and the Respondent’s board approved the revocation not the Commissioner General.Counsel prayed for dismissal of the Application with costs. Analysis and determination 61.The principle question for determination is whether verification of the applicant’s documents, qualifications and experience and eventual revocation of appointment was unreasonable, irrational and/or procedurally flawed. 62.It is not in dispute that the 2nd Respondent advertised for the position of Commissioner BSTEM, the Petitioner submitted an application, was shortlisted, interviewed, took the Psychometric test was interviewed by the 2nd Respondents Board of directors on 2nd December, 2025, the applicant as the top candidate and the Board resolved that an offer be made to him, which offer he accepted and was formally appointed as Commissioner Business Strategy, Technology and Enterprise Modernization (BSTEM) vide letter dated 11th December 2025 and subsequently executed the contract of employment, thereby becoming an employee of the 2nd Respondent and was scheduled to report on 12th January 2026 which did not take place after the 1st Respondent’s revoked the appointment vide letter dated 17th March 2026 in accordance with a resolution of the Board of the 2nd Respondent.The three (3) year fixed term contract was to ran from12th January 2026 to 11th January 2029 and his salary was Kshs.1,000,000.00. 63.It is equally not in dispute that upon employment by the 2nd Respondent, the petitioner became a public officer by dint of the provisions of Article 260 of the Constitution of Kenya, which provides; Public office to “means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the consolidated fund or directly out of money provided by parliament. 64.The petitioner became part of the public service for the simple reason that the Kenya Revenue Authority, the employer, is a government agency for collection and receipt of all revenue. 65.The Petitioner became an employee of the 2nd Respondent effective 12th January 2026 on a six months probationary contract to enable the 2nd Respondent assess and determine his suitability for the position. Deferment of the reporting date did not affect the contractual relationship. He remained an employee as defined under Section 2 of the Employment Act. 66.As to whether the court has jurisdiction to hear and determine the instant petition, the court is persuaded that it has the requisite jurisdiction by dint of the provisions of article 162 (2) (a) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act. 67.More importantly, the petitioner was employed by the Board of directors of the 2nd Respondent and on account of his seniority revocation of his appointment and contract of service was at the instigation of the Board of directors, which Betty Mutite Kimeu, the 2nd Respondents Chief Manager Human Resource Management confirmed is the final decision-making body of the 2nd Respondent and it follows that having made the decision, no appeal could lie to the same body. A review may. 68.In the instant case the 2nd Respondent’s letter of revocation of appointment made no reference to the possibility of appeal or review, to whom it could be made and time line, if any. 69.The Applicant’s dismissal on 17th March 2026 was summary, severed the employment relationship between the parties effectively and the petitioner had the option to appeal to the Public Service Commission by dint of the provisions of Section 74 of the Public Service Commission Act or file a suit as he did and either option would have been legitimate bearing in mind that Article 234 of the Constitution of Kenya and Part XV of the Public Service Commission Act which obligates the Public Service Commission to hear and determine appeals by persons dissatisfied or affected by decision made in respect of County Government Public Service and Section 87 (2) of the Act prohibits the filing of any legal proceedings in any court unless the appellate process has been exhausted. The provisions of Section 74 of the Public Service Commission Act are not couched in mandatory terms and public officers seldom invoke it before filing a suit. 70.In the courts view, the Applicant had no internal mechanisms to exhaust before filing the instant suit. 71.As adverted to elsewhere in this judgment from 12th January, 2026 to 17th March 2017, when the Applicant’s employment was terminated by the 2nd Respondent, the Applicant was serving on probationary terms. 72.The Applicant faulted the 2nd Respondent’s verification process which culminated in the revocation of appointment and contract of service as a violation of his constitutional rights to fair labour practices, fair administrative action and due process. 73.It is common ground that the 2nd Respondent sought various clarifications from the Applicant at different times before post and appointment. Questions appear to have arisen as soon as the Applicant was issued with a Letter of Appointment and contract dated 11th December 2025 when upon request, the Applicant supplied his official profile for release to the public which stated that he held the Msc degree in Digital Transformation, which was not the case, as evidenced by the qualifications itemized by his application. 74.According to the Applicant, omission of the word on-going was unintentional. Another possible explanation is that the Applicant downloaded an existing profile which he forwarded on WhatsApp. 75.The reason for this is that if he prepared the official profile after the request, the Applicant knew that the Msc degree was on-going and the word could not have been missed unintentionally. He knew he did not have the qualification and could only insert it as on-going. 76.The applicant did not disclose whether he prepared the official Executive profile when requested by the 2nd Respondent or forwarded an existing one. Either way, the absence of the word on-going could be accorded different interpretations and reasonably so. 77.Based on the messages exchanged between the 2nd Respondent and the Applicant on 11th December 2025 from 11.07 am, the Applicant had sufficient time to draft and forward the official Executive profile at 1.14 pm. 78.Thereafter the 2nd Respondent raised issues about the Mini MBA obtained in 2018 which turned out to be a nonacademic qualification not associated with the typical Master of Business Administration a prestigious qualification known the world over. 79.From the documents and averments on record, it is discernible that the so-called Mini-MBA was a Certificate or Diploma course, but what made the qualification attract inquiry is because the Applicant placed it above the Bachelors Degree, which created the impression that it was a superior academic qualification which was not the case. The Applicant deliberately placed the Mini-MBA qualification as an academic qualification as opposed to professional. The two are typically separated and are graded on different parameters. 80.A cursory observance of the Applicant’s Curriculum Vitae created the impression that he had a Master Degree qualification by dint of the Mini-MBA but the request for the certificate and copies of transcripts yielded no results. The Applicant, however, explained the nature of the qualification. 81.To its credit the 2nd Respondent sought the opinion of the KNQA on the Mini-MBA which reported that it was an unregulated qualification which would mean that it was only recognized by IBM. But what appear to have led to an expanded and detailed verification exercise of the Applicants qualifications and representation were the emails received by the 2nd Respondent from whistleblowers.The 2nd respondent, equally sought information about the Applicants employment at Agile Cloud Ltd, position and salary. 82.The Applicant admitted that he was a consultant only not a Chief Technology Officer, which signified employment. Agile Cloud Ltd confirmed in writing that the Applicant was its Principal Consultant, Lead Architect and remuration was project based. 83.The position the Applicant was appointed to is undoubtedly highly placed in the 2nd Respondents hierarchy and public service generally and attracted concerns which the 2nd Respondent was obligated to inquire into for public accountability. 84.In the courts view the on boarding of a new employee requires the employer to ensure that all his documents are inorder and reflect correct information. This includes the conduct of background checks which is critical in employment. 85.It is not uncommon for candidates to cite non-existent employers, position held, qualifications or duration served and the employer’s attenae raises further where a whistleblower(s) writes to the employer about an employee. Such an employer cannot be faulted for widening its scope of verification, the short timelines notwithstanding. Since the verification took place after 11th December 2025, the Applicant knew he had a contract of service effective 12th January 2026 after which he became an employee in waiting to report and thus had time to respond expeditiously. Similarly, the requests related to documents and matters within his possession and knowledge and as deponed, the 2nd respondent was endeavoring to ensure that the Applicant reported to work timeously on conclusion of the verification exercise.Background checks may be conducted slightly before or after employment. It depends on the particular employer. 86.In the courts view, nothing prevented the 2nd Respondent from seeking answers and confirmation from its intended and later its employee and the consulting firm shouldered no responsibility if the 2nd Respondent employed an unsuitable candidate. 87.The court takes judicial notice of the fact that that public bodies have been instructed to verify documents submitted to them by employees with the relevant bodies such as the institutions attended, and examination bodies such as the Kenya National Examination Council (KNEC), Kenya Accountants and Secretaries Examination Board (KASNEB), Engineers Registration Board (ERB) or the Institute of Human Resource Management (IHRM) among others universities and tertiary institutions. 88.The court notes that throughout the recruitment process and the verification exercise, the 2nd Respondent’s Board of directors was actively involved and made all relevant decisions including the decision to revoke the Applicants appointment and contract of service. 89.The Applicant faulted the 2nd Respondents letter of revocation of appointment and contract of service on the premises that it had no attachment of the 2nd Respondents Board of director’s resolution, which was filed by the 2nd Respondent. It was a Board decision. 89.Similarly, the Applicant faulted the 2nd Respondent that he was subjected to inspection of his documents on two occasions and it proceeded to appoint him and was thus estopped from citing the lack of qualification as the ground of revocation of appointment and contract of service. 90.Article 232 of the Constitution of Kenya enshrines the values and principles of public service which include, high standards of professional ethics, impartiality, transparency, accurate information, merit in appointments subject to the qualifications under sub-article (h) and (i). Needless to belabour, merit cannot be guaranteed without verification of documents and information provided by employees the number of times notwithstanding. The foregoing is against the background of many public officers resigning or being dismissed from public service for having relied on non-existent qualifications and forged documents to secure employment. 91.The 2nd Respondent, as deponed, had the power to verify the Applicant’s qualification and dismiss him if in view he did not fit the bill. 92.The pith and substance of this case is whether the 2nd Respondent violated the Applicant’s constitutional rights, namely fair labour practices, right to fair administrative action and due process. 93.In summary, after the Applicant had responded to all the issues raised by the 2nd Respondent, at its meeting held on 13th February 2026, the Board of directors of the 2nd Respondent juxtaposed the specifications needed for appointment to the position of Commissioner BSTEM against the Applicant’s qualifications and representations in all areas, including nature of engagement by Agile Cloud Ltd, remuneration educational qualifications, Executive profile and his responses and resolved to engaged the Commission for University Education (CUE) for recognition and equation of the Mini MBA held by the Applicant and he be required to avail the recognized and equated qualification within one (1) month and the Human Resource Committee to deliberate the matter and recommend to the Board for approval. The Special Human Resource Committee sat on 9th March 2026. 94.Vide letter dated 17th February 2024 CUE stated that;i.IBM is neither an accredited University nor a Degree awarding institution.ii.IBM qualifications are yet to be classified in the same band as degrees or equivalent qualifications.iii.The qualification is a professional qualification and membership certification and could not be equated to a degree. 95.The Committee came to the conclusion that responses from CUE and the Applicant confirmed that the Applicant did not hold a Masters Degree and thus did not meet the minimum qualifications for the position of Commissioner, Business Strategy, Technology and Enterprise Modernization. 96.The Committee recommended revocation of the Applicant’s Letter of officer of employment and the 2nd Respondent’s Board of direction adopted the recommendation at its meeting on 11th March 2026 and directed the Commissioner General of the 2nd Respondent to revoke the letter of offer of employment which paved the way for the letter dated 17th March 2026. 97.At the meeting, the Board of directors resolved that the management would circulate a draft job advertisement to the Human Resource Committee for review and recommendation to the Board for approval. 98.Strangely, neither the consulting company PKF Ltd nor the 2nd Respondent’s Board of directors took time to interrogate the Applicant’s academic qualifications initially. Both appear to have taken the Mini MBA held by the Applicant as a Masters Degree as the Msc course was on-going as per the application. 99.It was patently clear that the Applicant had no Masters Degree in any field and was thus not qualified for appointment to the position consistent of Commissioner BSTEM. Consistent with counsel’s submission, it correct that the Applicant’s legitimate expectation that the 2nd Respondent had the opportunity to verity original certificates he availed at every stage of the process, ranked him first appointed him and then reversed the appointment was defeated. 100.Records reveal that after the 2nd Respondent had received the Applicant’s responses, emails from whistleblowers confirmation from Agile Cloud Ltd and KNQA, the Human Resource Committee at its meeting on 26th January 2026 resolved to invite the Applicant and by letter even date the committee requested the Applicant to clarify his employment and role at Agile Cloud Ltd, salary and employment benefits and academic and professional qualifications within seven (7) days and was subsequently invited for an oral presentation on 3rd February 2026 vide letter dated 28th January 2026 5 days later at Safari Park Hotel, Nairobi at 2.30 pm. The Applicant responded vide letter dated 1st February 2026. 101.During the hearing on 3rd February 2026, the Applicant confirmed that he was not an employee of Agile Cloud Ltd as initially represented in the application and was not paid any salary as he was a consultant and the Kshs.1.3 salary was from IBM in 2021, thus not employed formally for 5 years and did not hold the Masters Degree in Digital Transformation as represented in the Press announcement Master Degree Programme was on-going. 102.The committee acknowledged that the Applicant was an employee of the 2nd Respondent and resolved to seek guidance from the Acting Inspector General State Corporations who attended the Hybrid Board meeting on 13th February 2026 which resolved to seek the assistance of CUE as adverted to earlier. 103.Clearly, the 2nd Respondent engaged the Applicant at every stage as adverted to elsewhere in this judgment, the Applicant was an employee on probation of the 2nd Respondent by dint of the Letter of Appointment and Contract of Service and remained so until he was summarily dismissed by the 2nd Respondent. 104.Under section 2 of the Employment Act Probationary contract“means a contract of employment, which is of not more than twelve months duration or part thereof is in writing and expressly states that it is for a probationary period” 105.Concerning termination of employment during probation, Section 42 of the Employment Act provides;1.The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract.2.A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.3.No employer shall employ an employee under a probationary contract for more than the aggregate period provided under sub section (2).4.A party to a contract for a probationary period may terminate the contract by giving not less than seven days notice of termination of the contract or by payment by the employer to the employee of seven days wages in lieu of notice. 106.The jurisprudence emerging from the Employment and Labour Relations Court (ELRC) for many years was conflicting. One school held that termination during probation was permitted because the employee was on trial on actual performance and the provisions of Section 41 of the Employment Act are inapplicable. 107.See Mercy Njoki Karingithi v Emerald Hotels Resorts & Lodges Ltd, (2014) eKLR, Danish Jalang’o & another v Amicabre Travel Services Ltd (2014) eKLR and Dixon Amdama v Amani Tiwi Beach Resort (2015) eKLR. 108.The other School held that the protections under section 41 and 45 of the Employment Act were available to an employee whose employment is terminated during probation. Decisions such as Evans Kiage Onchwari v Hotel Ambassador (2016) eKLR and Onesmus Kilonzo v National Media Group Ltd (2019) eKLR. 109.However, the 3 Judge decision in Monica Munira Kibuchi & 6 others v Mt Kenya University & another (2021) eKLR introduced another dimension which settled the law. 110.The court held:Further, it does not make sense to accord an apprentice and indentured learner who are included in the definition of an employee under Section 2 the procedural benefits of section 41 but deny the same to an employee simply because they hold a probationary contract…Further, in addition to the inconsistencies among section 42 (1), 42(2) and 41 considered earlier in this judgment we find no reasonable and justifiable cause in the exclusion of an employee holding a probationary contract from procedural safeguards contained in section 41 of the Employment Act. To the extend therefore we find and hold that section 42 (1) in so far as it excludes an employee holding a probation any contract from the provisions of section 41 of the Employment Act is inconsistent with Articles 41 and 47 of the Constitution hence null and void.” 111.The decision in Munira & others v Mt Kenya University was cited with approval by the Court of Appeal in Red Land Roses Ltd v Rosemary Wambui Mugo (2025) KECA 96 (KLR) where the court expressed itself as follows:To the best of our knowledge that decision of the ELRC has not been challenged in this court or reversed. It is also not subject of appeal in the appeal before us. In short the decision of the ELRC in Monica Munira Kibuchi & 6 others vs Mt. Kenya University & another (Supra) represents the law taking into account the jurisdiction and mandate conferred upon ELRC by Article 162 (2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. Indeed, recently in Kenya Tea Growers Association & 3 others v National Social Security Fund Board of Trustees & 13 others (2024) (KESC) 3 (KLR) the Supreme Court held that there was nothing in the Constitution or the Environment and Land Act to suggest that in exercising its jurisdiction over disputes emanating from Employment and Labour Relations the ELRC was precluded from declaring the Constitutional validity of a stature. We add or a provision of a statute.” 112.It therefore follows that in determining whether revocation of the Applicants employment was lawful, the requirements of due process is part of the matrix. The revocation must have been fair. The Appellant must been aware of the concerns by the 2nd Respondent and was indeed aware of the same and responded to each concern as and when it was raised and by letter dated 26th January 2026, he was requested to respond to the issues in writing and did so vide letter dated 1st February 2026 having been accorded 7 days upto 2nd February 2026 and was additionally invited for an oral hearing on 3rd February 2026 and was heard on all the issues as minutes of the meeting reveal and the committee made various findings and the only outstanding issue was the stature of the Mini-MBA which was subsequently clarified by CUE at the instigation of the 2nd Respondent and the Applicant’s and the end result was that the Applicant did not have a Masters Degree which was a requirement for the position and ought not to have been short listed by the PKF Ltd. 113.Contrary to the Applicant’s counsel’s submission that the fact that the concerns progressed from one to the other denied the Applicant the opportunity to respond effectively and violated his right to fair administrative action, the court is not persuaded that that was the case as responding to each issue singly accorded the Applicant an opportunity to address all aspects of the concern and as adverted to earlier in this judgment the 2nd Respondent accorded the Applicant an opportunity to address all the issues vide letter dated 26th January 2026 which he did and was heard although he had not been notified of the right to be accompanied by a fellow employee but attended with his counsel. 114.The court notes that even after hearing the Applicant orally, the 2nd Respondent’s Board took time to have all the documents verified to safeguard the Applicant’s rights and made the decision to revoke the Applicants appointment. 115.Based on the concatenation of evens from 11th December 2025, in particular to 17th March 2026, and taking into account all the circumstances of this case, the court is of the view that the 2nd Respondent’s Board of Director’s decision was neither illegal, irrational, unreasonable or procedurally flowed. 116.Having appointed the Applicant to the position of Commissioner BSTEM the 2nd Respondent’s. Board was forced by circumstances to overrule itself and revoke its resolution. Acting otherwise would have infringed the provisions of Article 232 of the Constitution of Kenya having published the minimum requirements for the position of Commissioner BSTEM, the 2nd Respondent could not retain the Applicant in the position after ascertaining that he did not meet the minimum qualifications. 117.The 2nd Respondent’s Board of directors was not estopped from undoing what it had done because the doctrine of estoppel which is a creation of equity is inapplicable if it is inconsistent with written law. 118.Finally, although the Applicant may have lost time in going through a process which came to cropper, lost opportunity or had a dented reputation, he was at all material times he was times patently aware that he did not qualify for the position as he did not meet the minimum qualifications and arguably his only relief, if any, would have been in damages, which he did not pray for, perhaps because none was suffered. 119.The order of certiorari prayed for, if granted, would placed the Applicant in the position of Commissioner BSTEM. The effect of the order would be an automatic reinstatement to an office he was unqualified to hold.The relief is declined. 120.Having found that the 1st Respondent’s decision was neither unlawful, unreasonable, ultra vires, irrational or procedurally unfair, the declaration sought lacks merit. 121.Minutes of the Human Resource Committee and those of the 2nd Respondent’s Board of director’s meetings held on 9th March 2026 and 11th March 2026 show that the 1st Respondent had express Board authority to revoke the Applicants appointment and contract of service.The declaration is unmerited. 122.The instant Originating Motion was filed on 27th April 2026 more than one (1) month after the decision sought to be prohibited was made. The decision took effect immediately. A termination of employment does not require implementation or enforcement. It is self-execution as it terminates the contractual relationship and the parties can only revert to the former position by another agreement or reinstatement.The order prayed for is declined. 123.Finally, an order of MANDAMUS to compel the 1st Respondent to recognize and give effect to a contract it terminated on grounds the court has found justified would be unmerited in this instance. 124.Similarly, having found that the 2nd Respondent’s Board of directors had a reasonable basis to revoke the Applicant’s Letter of Appointment and Contract of Service and the decision was neither ultra vires, unlawful, irrational nor procedurally unfair, the alternative prayer of setting the decision aside lacks merit. 125.From the foregoing, it is discernible that the Applicant’s Originating Motion dated 27th April 2026 lacks merit and it is accordingly dismissed.Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16TH JULY, 2026.DR. JACOB GAKERIJUDGEOrderIn 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.