• The petitioner did not identify a single EACC employee who did not attain C+ in KCSE and holds a senior position.
• The petitioner also did not demonstrate that the requirement for KCSE C+ was irrational.
A court has dismissed a case challenging EACC's directive that persons applying for senior positions must have scored C+ and above in KCSE.
The case filed against the Ethics and Anti-Corruption Commission was by a faceless woman petitioner.
The petitioner identified as Gloria Kimani neither appeared before the court nor gave details of her identification.
Kimani however faulted an advertisement by EACC for various jobs where it stated that the applicants have the grade as a bare minimum.
In suit papers seen by the Star, Kimani told the labour relations court that the move was discriminatory as other positions did not have a similar requirement.
The advertisement was for positions of deputy directors of regional offices, assistant directors of the same and senior investigations officers.
Also, security assistant, director of asset recovery and civil litigation, deputy director HR, and assistant director of finance and accounts.
Kimani said the job call violated the constitutional rights of EACC employers who have upgraded their CV to acquire Master's without having met the C+ threshold for an undergraduate course.
“A declaration be and is hereby issued that the respondent has infringed on the employee’s legitimate expectation regarding promotions and career progressions,” she prayed.
The petitioner further wanted EACC barred from proceeding with the promotions in line with the new requirements for the referenced higher KCSE grades.
But Justice Mathew Nduma threw out the case.
He said the petitioner did not identify a single EACC employee who did not attain C+ in KCSE and holds a senior position, or has a higher qualification, say a Master’s obtained through bridging.
“The court should not engage in an idle academic exercise where a case doesn’t identify any particular person or class of persons aggrieved by the decision of the respondent (EACC),” the judge ruled.
“In the present case, the petitioner has not disclosed her identity but was exposed in the further pleadings of the respondent to be an advocate, who doesn’t disclose who she actually represents.”
Nduma said with the positions having been filled, with no complaint about the same and the evidence by EACC, the case doesn’t stand.
“The court is persuaded by the respondent that the petitioner is engaged in a speculative exercise without an iota of evidence that the impugned adverts actually aggrieved any internal or external applicants. On that score alone, the petition cannot stand,” the judge said.
Nduma also said Kimani (the faceless petitioner) did not demonstrate that the requirement for KCSE C+ was irrational and not necessary for the advertised jobs.
“No tangible evidence was placed before the court in this regard,” he said, citing a case where the court held that an appointing authority is not limited from deciding the qualifications of professionals they seek to fill any positions within the organisation.
“Accordingly, the petition falls on all fronts for want of any real evidence to sustain the bare claims made,” Nduma said.
The EACC, in a defence by lawyer Philip Kagucia, said there was a likelihood that the petitioner was not in existence as a person.
“There is no evidence that the petitioner is acting on behalf of another person who act in their own name, is a person acting in public interest or is an associate of acting in the interest of one or more of its members,” the EACC said.
The agency further said it is not in public interest to interfere with the independence of the commission to recruit suitable staff internally and externally.
EACC added that the requirement of grade C+ in KCSE is not unique to the commission as it is consistent with the minimum requirement for entry level positions, which requires candidates to possess a university degree.
“There is no evidence placed before court by the petitioner enumerating any candidates who do not possess the minimum requirement of mean grade C+ in KCSE and who consequently deserve the intervention of the court,” EACC said through Kagucia.