Court of Appeal temporarily restores ODPP senior appointments after recruitment dispute

NAIROBI, Kenya — Senior officials at the Office of the Director of Public Prosecutions (ODPP) can remain in their positions for now after the Court of Appeal temporarily suspended a ruling that had cancelled their appointments.

The appellate court issued an interim stay on Thursday, August 20, 2026, effectively putting the June decision of the Employment and Labour Relations Court (ELRC) on hold as the dispute moves through the appeal process.

The order means the affected Senior Deputy Directors and Deputy Directors will continue performing their duties until the Court of Appeal makes a further determination.

The dispute centres on how the ODPP recruited and promoted senior prosecutors — and whether the process met the constitutional standards expected of a public institution.

Court puts June ruling on hold

The ELRC, in a judgment delivered by Justice Jacob Gakeri on June 25, found fault with the recruitment process and nullified the appointments.

The court also directed the ODPP to undertake a fresh recruitment process that would meet constitutional requirements on fairness, transparency and accountability.

The matter reached the Court of Appeal after the decision was challenged.

On Thursday, the appellate court granted an interim stay of execution of the ELRC judgment.

The court's order stated:

“Pending delivery of the ruling, an interim order of stay of execution of the judgment of the ELRC delivered on June 25 2026 is hereby granted.”

The immediate effect is straightforward: the June judgment cannot currently be enforced against the affected officials.

It does not, however, amount to a final decision on whether the original recruitment was lawful.

How the dispute began

The case was brought by Mark Nabuyumbu Barasa, a Senior Assistant Director of Public Prosecutions who had applied for the senior positions.

Barasa challenged his exclusion from the initial shortlist for positions of Senior Deputy Director of Public Prosecutions and Deputy Director of Public Prosecutions.

According to court records, he argued that he met the requirements for the positions but was left out of the shortlist while some officers junior to him, as well as officers serving on secondment, were shortlisted.

He later participated in the recruitment process after being invited for interviews, but was unsuccessful.

The case therefore raised a broader question: was the selection process capable of showing, through records and evidence, why some candidates were shortlisted and others were not?

What Justice Gakeri found

Justice Gakeri's judgment went beyond Barasa's individual grievance.

The court found that the ODPP and Public Service Commission had not demonstrated, with sufficient documentary evidence, how candidates had been assessed and shortlisted.

The issue was not simply whether the respondents said the process was merit-based.

The court held that a public employer must be able to demonstrate how that claim can be independently verified.

The ruling consequently nullified the recruitment and directed that the positions be re-advertised through a transparent process.

Barasa was also awarded Ksh1 million in damages for violation of his right to fair administrative action, according to reports on the judgment.

The ODPP's position

The ODPP and the Public Service Commission had defended the recruitment process, maintaining that it had been conducted fairly and on merit.

The dispute therefore pits two competing positions against each other.

Barasa's case is that the process did not adequately explain or demonstrate how candidates were selected.

The respondents' position was that the recruitment had been properly conducted.

The Court of Appeal's latest order does not resolve that disagreement.

Instead, it preserves the position that existed before the ELRC judgment while the appellate proceedings continue.

Why the case matters beyond the ODPP

The case could have wider implications for public-sector recruitment in Kenya.

At the heart of the ELRC ruling was a question that extends well beyond prosecutors: what evidence should a public employer produce to show that a recruitment or promotion exercise was genuinely based on merit?

Article 232 of the Constitution sets out values and principles of public service, including fair competition and merit as the basis for appointments and promotions, as well as accountability and transparency.

The ELRC judgment placed emphasis on the need for public institutions to demonstrate those principles through the recruitment record, rather than simply assert that they were followed.

That could become an important issue in other disputes involving public appointments and promotions.

What happens next?

For now, the affected ODPP officials remain in office.

The Court of Appeal's stay is interim, meaning the underlying appeal has not been finally determined.

The appellate court will ultimately have to consider whether the ELRC was right to nullify the appointments and order a fresh recruitment process.

Until then, the June judgment remains suspended.

The case also leaves an important question hanging over the ODPP: whether the original recruitment process will ultimately survive scrutiny or whether the institution will have to start again.

For the officials whose appointments were cancelled by the lower court, Thursday's order offers temporary relief.

For the complainant, the dispute continues.

And for Kenya's wider public service, the case is shaping into a test of how far institutions must go to prove that appointments and promotions are genuinely fair, transparent and merit-based.

About the Author

Maureen Onyango is a journalist passionate about storytelling, life coaching and spiritual lessons. She studied at the Kenya Institute of Management and enjoys telling stories that inform, inspire and empower communities.