Automated Summary
Key Facts
The Kenya University Staff Union (KUSU) challenged the Co-operative University of Kenya's (CUK) decision to externally advertise four senior positions (Senior Lecturer, Senior Procurement Officer, Senior Assistant Procurement Officer, ICT Officer) without first considering internal candidates as required by CUK's Human Resource Manual. The union argued this violated internal regulations prioritizing internal recruitment through promotions, transfers, or internal ads before external hiring. CUK defended its actions by citing a Skills Gap analysis showing insufficient qualified internal candidates. The court found KUSU had a prima facie case, noting CUK's process was irregular as it relied solely on CV reviews without proper performance appraisals or employee participation. The court issued an injunction halting external recruitment for these positions pending the case's resolution, while dismissing the November 2023 application to address other issues during the trial.
Issues
- The second issue centered on the validity of the Respondent's Skills Gap analysis, which it used to justify external recruitment. The court noted that the Manual requires more than mere CV reviews for promotions and internal recruitment, emphasizing the need for full employee participation and appraisal results. The preliminary evidence indicated the Respondent did not adhere to these procedures, raising questions about the legality of its recruitment approach and the enforceability of its HR policies.
- The primary issue was whether the Co-operative University of Kenya (Respondent) was required to exhaust internal recruitment avenues—such as promotions, transfers, and internal advertisements—for four advertised positions (Senior Lecturer, Senior Procurement Officer, etc.) before resorting to external recruitment, as mandated by its 2017 Human Resource Manual. The Claimant argued the external advertisement bypassed internal candidates, while the Respondent claimed a Skills Gap analysis justified the external process. The court found the Respondent's reliance on CV reviews alone insufficient and concluded the internal recruitment process was not properly followed.
Holdings
- The court disallowed the application dated 6th November 2023 and ordered that the costs be borne by the Respondent.
- The court allowed the application dated 14th July 2023, issuing an injunction to halt external recruitment for the contested positions and awarding costs to the Claimant.
Remedies
- Costs of the application are granted to the Claimant.
- The application dated 6th November 2023 is disallowed with costs to the Respondent.
- The court issues an order of injunction restraining the Respondent from processing the applications and proceeding with interviews for the advertised positions pursuant to the Daily Nation of Friday, June 23, 2023 and the Respondent's website reference CUK/EXTADVERT/3/23(1) for June 2023 pending the hearing and final resolution of this suit.
Legal Principles
The court applied the principle of interim injunction to prevent the Respondent from processing external recruitment applications pending resolution of the dispute. The ruling emphasized that where there is a clear risk of unlawful conduct (violating internal HR policies), an injunction may be granted even if damages could later compensate the claimant. This aligns with established jurisprudence (e.g., Banis Africa Ventures v National Land Commission) which holds that parties should not benefit from unlawful acts by paying compensation.
Precedent Name
- Banis Africa Ventures Limited v National Land Commission
- Said Almed vs. Mannasseh Benga & Another
Cited Statute
Human Resource Manual of Co-operative University of Kenya
Judge Name
B. O. M MANANI
Passage Text
- Chapter two of the Manual deals with the issue of recruitment of staff to serve the Respondent. Clause 2.7 of the Manual sets out in a hierarchical manner the sources of manpower for the Respondent. It provides that the University shall consider the following ways to fill vacant positions within its rank and file:- a. Promotions; b. Transfer of an employee; c. Internal recruitment; d. External recruitment.
- The court hereby issues an order of injunction restraining the Respondent from processing the applications and proceeding with interviews for the advertised positions pursuant to the Daily Nation of Friday, June 23, 2023... pending the hearing and final resolution of this suit.
- The preliminary material before me does not disclose that this was the case in the instant case. In effect, it is clear to me that the Claimant has a prima facie case against the Respondent.