In a recent High Court decision, the Court held that persons who had applied for a job listing and had been shortlisted for an interview had legitimate expectations to be interviewed. Abdi & 2 others v Speaker, County Assembly of Garissa & another (Constitutional Petition E013 of 2023) [2024] KEHC 4577 (KLR) (3 May 2024) (Judgment)
Facts of the Case
On 4th October 2022, the County Assembly of Garissa advertised vacancies for the position of external members of Garissa County Public Service Board. The Petitioners, among others bearing the qualifications as prescribed in the notice, applied for the said positions.
On or about 9th June 2023, the Speaker, County Assembly of Garissa in his capacity as the secretary of the County Assembly Service Board, shortlisted and published a list of thirty-six persons, which included the Petitioners.
That the Petitioners among the other shortlisted candidates traveled to Garissa and presented themselves before the County Assembly of Garissa on 14th and 15th of June 2023, but were informed that the interviews would not take place on the said dates.
On or about 13th September 2023, the Petitioners were shocked to find a Notice for the readvertisement of vacancies for the two external members of the County Assembly Service Board published in the Daily Nation Newspaper.
The Petitioners argued that the failure of the Respondents to conclude the recruitment process and their decision to readvertise the vacancies of the external members of Garissa for County Assembly Board is a violation of their legitimate expectation and an infringement of their right to fair administrative action and therefore unconstitutional. That by shortlisting the Petitioners, the Respondents created a reasonable and legitimate expectation in the minds of the Petitioners and all other shortlisted candidates that the next step in the recruitment process would be interviews and selection.
The Respondents in their defense indicated that the readvertisement was occasioned due to complaints raised by the minority and marginalised groups living in Garissa County alleging discrimination after the shortlisting of the Petitioners.
Legal Analysis
Article 22(1) of the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
The celebrated case of Anarita Karimi Njeru v Republic eKLR, provides that “a party seeking a constitutional redress ought to express himself or herself with a reasonable degree of precision the nature and extent of constitutional rights violated or threatened or likely to be infringed.”
In the case of Kevin K Mwiti & Others v Kenya School of Law & 2 Others (2015) eKLR the principle of legitimate expectation was extensively discussed to wit that the protection of legitimate expectation is at the root of the constitutional principle of the rule of the law, which requires predictability and certainty in government’s dealings with the public. This is what Article 10 of the constitution envisages on the aspect of accountability, transparency and good governance.
In view of the above the Court noted that the right to employment is a right for every Kenyan subject to the relevant conditions being met. Having met the requisite qualifications and invited for interviews, the Petitioners had legitimate expectation to be interviewed and if successful, employed. Thus, the Court found that the expectation was legitimate hence constitutional.
The Court equally interrogated the Respondents reasons for re-advertising the same positions and noted that having woken up to the reality that there was an omission in the recruitment process, the Respondent had a duty to correct the omission. However, the correction should not be at the detriment or expense of the already short listed candidates.
The Court therefore held that upon the re-advertising the positions of external members of the Garissa County Assembly Service Board, the Petitioners and the rest of the candidates (36 of them) who had applied and been shortlisted for the same positions need not apply and that they shall automatically qualify to appear for the interview when scheduled.
Conclusion
This Judgment is important as it highlights the fact that administrative bodies cannot arbitrarily alter or abandon processes once individuals have reasonably relied on them. This fosters rule of law, transparency and accountability. Further this decision provides guidance for future recruitment processes, ensuring that candidates who have been shortlisted are not prejudiced by administrative errors and are given a fair opportunity to participate in the next steps of a recruitment process. This decision further buttresses and affirms the administrative law principal of legitimate expectation as a cornerstone of good governance.
If you have any queries relating to the above or any aspect of Employment Law, please do not hesitate to contact James Wairoto and Mariam Musa .Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.
