The Employment and Labour Relations Court has upheld the appointment of Joseph Kitilit as the chief executive officer of State-owned National Mining Corporation.
The court dismissed a petition filed by Hussein Adan Mohamed, who was also eyeing the position and had emerged the best candidate during the interviews.
Mr Mohamed wanted the court to revoke Mr Kitilit appointment over alleged discrimination and illegalities.
But Justice Byram Ongaya said there was no evidence that Eng Kitilit's appointment by the Cabinet Secretary (CS) for Mining, Hassan Joho, was influenced by irrelevant factors. Neither could the CS's failure to appoint Mr Mohamed be described to have been unreasonable, said the judge.
"The petitioner has not demonstrated that any irrelevant considerations influenced the second respondent’s (CS for Mining) decision and in absence of any other material, the second respondent has been found to have selected the interested party (Eng Kitilit), for appointment and exercised the discretion in accordance with the applicable circular," said Justice Ongaya.
Mr Kitilit was appointed in May 2025, following a recommendation by the corporation's board of directors. He was selected from a list of three - Mr Mohamed, Mr Kitilit and Alice Mulimi Muthama, respectively, which the board had forwarded to the CS.
While defending his choice, Mr Joho told court that as he reviewed the recruitment report, he noted that Mr Mohamed had 12 years of professional experience. This was contrary to the required 15 years provided as a mandatory qualification. He argued that the petitioner was ineligible for appointment as CEO whereas Mr Kitilit met all the requirements.
In his case, Mr Mohamed argued that arising from the interviews conducted in February this year, he emerged top after scoring the highest marks above all other applicants.
Having obtained the highest score at the interviews and subsequently nominated by the board as the first possible CEO, he claimed it was unlawful for the CS to bypass his name.
"The CS’s act of bypassing the petitioner in the appointment of the CEO without valid reasons is contrary to Article 47 (of the Constitution), which provides for the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.," argued Mr Mohamed.
However, Justice Ongaya dismissed the petition stating that there was no violation of the Constitution as alleged.
"The selection and appointment decisions have not been shown to have violated the cited constitutional provisions as was urged for the petitioner. The impugned selection and appointment decisions have not, be necessary evidence, been shown to have been concluded in a whimsical or arbitrary exercise of discretion," said the judge.
The court found that the petitioner made allegations of constitutional violations without relevant evidence to back his case.
"While excellent performance at the interviews was crucial, it is also true that Article 232 of the Constitution makes provision for other considerations in making recruitment and appointments in public service," said Justice Ongaya.
The said considerations in the Constitution include representation of Kenya’s diverse communities; and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of men and women; the members of all ethnic groups; and, persons with disabilities.
The corporation through Mr Kitilit had asked the court to dismiss the petition on grounds that the highest score by Mr Mohamed at the interviews did not entitle him to automatic appointment as CEO.
"In any event, the difference in marks between the petitioner and the interested party (Eng Kitilit) who came second was one mark.
Furthermore, the interested party has more than eight years’ work experience than the petitioner," they argued.
They added that the CS had the discretion to appoint any of the three candidates recommended by the board, and if the petitioner was the sole preferred candidate, there would have been no need to submit additional names.
