The Kenya Forest Service (KFS) violated the rights of its forest guards to fair labour practices by failing to advertise the position of Inspector Cadet internally before proceeding with external recruitment in February 2023, a court has ruled.
Justice Onesmus Makau of the Employment and Labour Relations Court held that KFS did not demonstrate that it conducted internal recruitment, as required under Section 2.34 of its Human Resources (HR) Policy and Procedure Manual.
The judge noted that the policy mandates that when a higher position arises, priority must be given to internal recruitment through promotion of qualified officers.
“The procedure for carrying out such promotions is through internal advertisement, which the respondent (KFS) failed to prove it did,” Justice Makau ruled.
Seventeen constables and corporal guards had sued KFS accusing it of violating their rights by externally advertising the Cadet Inspector position without first considering eligible internal candidates, contrary to the agency’s Career Progression and HR Recruitment Guidelines.
Justice Makau said that when an employer has outlined a clear procedure for filling vacancies, that process must be strictly followed. Breaching such procedures amounts to unfair labour practices for which affected employees can seek legal redress.
“I find and hold that the petitioners have proved on a balance of probabilities that the respondent violated their right to fair labour practices by failing to give them priority under its HR Policy and Procedure Manual,” said Justice Makau.
However, the court declined to compel KFS to promote the petitioners to the rank of Inspector Cadets as requested.
“Since there is no evidence that the petitioners would have automatically qualified for promotion upon internal recruitment, I will not issue a mandatory injunction or award damages,” the judge ruled during the session held in Nyeri.
Qualified internal candidates
He further noted that the KFS HR Manual outlines additional criteria beyond academic qualifications and length of service for promotions.
The petitioners had told the court they were employed by KFS on various dates as Constable Forest Guards (Grade 12) and had remained in the ranks of constables and corporals for over 15 years without promotion, despite obtaining advanced academic qualifications, including bachelor’s and master’s degrees.
They argued that KFS’s HR Policy explicitly states that the agency should not recruit externally without first considering qualified internal candidates.
The external advertisement dated February 28, 2023, they claimed, ignored this requirement.
The guards also sued the Attorney General, alleging discrimination based on age, despite their qualifications and academic achievements.
They maintained that excluding internal, qualified staff from the recruitment process was discriminatory and unconstitutional.
In response, KFS argued that its recruitment process adhered to the Public Service Commission rules as well as its own HR policies. It claimed to have exhausted internal recruitment before proceeding with external advertisements.
The respondents denied any discrimination, insisting the recruitment process was lawful, fair, and transparent.
The court also dismissed the discrimination claims, stating there was no evidence the petitioners had been excluded from applying based on age or any other grounds.
