Court Rules Public Employers Must Prove How Job Candidates Are Selected

Public institutions in Kenya will now be expected to clearly explain and provide evidence showing how they selected successful job applicants after the Employment and Labour Relations Court ruled that simply saying a recruitment process was fair and based on merit is not enough.

In a landmark judgment delivered by Justice Jacob Gakeri, the court cancelled the recruitment of several senior officials at the Office of the Director of Public Prosecutions (ODPP).

The judge found that the hiring process failed to meet the constitutional principles of transparency, fairness, accountability, and openness that are required in all public sector recruitment.

The case was brought before the court by Senior Assistant Director of Public Prosecutions Mark Nabuyumbu Barasa. Barasa challenged the recruitment process after he was excluded from the shortlist for promotion to the positions of Senior Deputy Director of Public Prosecutions and Deputy Director of Public Prosecutions, despite believing that he had all the qualifications and experience required for the positions.

According to Barasa, the recruitment exercise was unfair because officers who were junior to him, as well as some officers who were serving in the ODPP on secondment, were included on the shortlist while he was left out.

Concerned by the decision, he requested an explanation from the relevant authorities regarding why he had been excluded from the recruitment process.

After raising his concerns, Barasa was later invited to attend interviews. However, the invitation came after the original shortlisting process had already been completed.

Despite participating in the interviews, he was not selected for promotion, prompting him to move to court and challenge the entire recruitment exercise.

During the hearing, both the Office of the Director of Public Prosecutions and the Public Service Commission defended the recruitment process.

They maintained that all appointments were made fairly, competitively, and strictly on merit. They argued that the process followed the law and that every applicant had been treated equally.

However, Justice Gakeri found that the two institutions had failed to provide sufficient evidence to support their claims.

Although they insisted that the recruitment process had been conducted fairly, they did not present documents showing how candidates were shortlisted, how interviews were conducted, or how the final decisions were reached.

The court noted that the respondents failed to produce the actual shortlisting criteria, interview score sheets, evaluation records, or any clear assessment formula that had been used to rank the candidates.

Without such evidence, the judge said it was impossible for the court to determine whether the recruitment process complied with the Constitution and the principles governing public appointments.

Justice Gakeri emphasized that transparency is a key requirement in public recruitment and that government institutions must always be able to demonstrate how they reached their decisions whenever those decisions are challenged in court.

The judge observed that there was no documented formula or objective method presented before the court to explain how the shortlist of candidates had been prepared.

Because of this lack of evidence, he concluded that the recruitment exercise did not satisfy the constitutional standards expected of public institutions.

“There was also no formula placed before this court to show how the shortlist was arrived at,” Justice Gakeri stated while delivering the judgment. He further ruled that the entire recruitment process was flawed and violated the Constitution because it lacked transparency and accountability.

As a result, the court declared all appointments that arose from the disputed recruitment process to be null and void.

This means that the appointments were legally cancelled because they were based on a process that failed to meet the constitutional requirements governing public employment.

Justice Gakeri also directed the ODPP and the Public Service Commission to begin the recruitment process afresh.

He ordered the institutions to re-advertise the affected positions, allow all qualified candidates to submit fresh applications, and conduct a recruitment exercise that is transparent, credible, fair, and capable of being independently audited if challenged.

In addition to cancelling the appointments, the court ruled that the respondents had violated Barasa’s constitutional right to fair administrative action.

The judge found that after Barasa requested information explaining the recruitment process and the reasons for his exclusion, the institutions failed to provide the information as required by law.

The court held that denying him access to the requested information deprived him of his constitutional rights and prevented him from properly understanding or challenging the recruitment process.

Because of this violation, Justice Gakeri awarded Barasa Ksh1 million in compensation as damages for the infringement of his constitutional rights.

The award serves as recognition that public institutions have a legal obligation to provide information when citizens seek explanations about administrative decisions affecting them.

The ruling is expected to have significant implications for recruitment across Kenya’s public sector. It sends a strong message that government agencies, state corporations, commissions, and other public bodies must maintain proper records throughout every stage of recruitment.

Going forward, public employers will be expected to keep detailed documentation showing how applicants are shortlisted, how interviews are conducted, how candidates are assessed, and how successful applicants are ultimately selected.

If a recruitment process is challenged in court, institutions will be required to produce this evidence instead of relying only on general statements that the exercise was fair and merit-based.

Legal experts believe the judgment reinforces the constitutional principles of fairness, transparency, accountability, and equal opportunity in public service recruitment.

It is also expected to encourage greater openness in government hiring processes while helping to ensure that promotions and appointments are made through procedures that can be independently verified and withstand legal scrutiny.

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