Appointment of an Employee In an acting capacity
Various development blue prints within the Republic of Kenya such as the Kenya Vision 2030, Kenya Digital Economy Blueprint 2019, the Sustainable Development Goals, the 2003 Economic Recovery Strategy for Wealth and Employment Creation, among others recognize that human resource development, youth employment, occupational safety and health, labour rights, productivity management, promotion of entrepreneurship culture and social protection are critical to socio-economic, political and cultural development in Kenya.
The promulgation of the Constitution of Kenya in 2010 elevated the rights of employees by, among other aspects, enshrining the right to fair labour practices as a fundamental right and freedom under Article 41 of the Constitution of Kenya, 2010.
Over the years, a common trend has emerged in the employment sphere with respect to appointment of individuals to various positions in an acting capacity. This development has mostly manifested itself within Government Agencies, Parastatals and Ministries. Such instances arise either out of the office bearer retiring from active public service, or removal of the office bearer on account of integrity and corruption related issues among other intervening circumstances.
Legal Framework Governing Appointment of Individuals in an Acting Capacity
The employment and labour relations legislative structure in Kenya is relatively novel. The main legislation governing Labour Law, being the Employment Act enacted in 2007, considerably changed the course of labour law in various material respects, particularly by greatly enhancing the rights of employees.
The Supreme Court of Manila in the case of Generoso R. Sevilla -Vs- The Hon. Court of Appeals and Nerito L Santios stated that, “an ‘acting’ appointment is merely temporary, one which is good only until another appointment is made to take the place”.
The power of appointment is essentially discretionary – meaning that Courts of law cannot control or dictate it. The choice of an appointee from among qualified candidates or applicants is a political and administrative decision, calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of office or organization concerned for they are familiar with the organizational structure and environmental circumstances within which the appointee must function.
Equally, statute law is somewhat scarce on this aspect as well, with Section 37 of the Employment Act, No. 11 of 2007 being capable of being slightly construed to acknowledge and appreciate the concept of “Appointment of an Employee in an Acting Capacity”. While the section explicitly outlines the circumstances under which a casual employment can be termed and/or considered to be an employee under a Contract of Service, the same fails to address critical issues on the concept of appointment of an employee in an acting capacity such as, “for how long should an employee be appointment in an acting capacity pending confirmation?”
Additionally, the Regulations of Wages (General) Order (Legal Notice No. 139 of 1967) generally discusses the concept of employment in an acting capacity and applies only in so far as the same is not in conflict with the Employment Act, No. 11 of 2007 or inconsistent with the Constitution of Kenya, 2010. The said Order provides that an employee shall be paid an acting allowance at a rate of not less than the difference between the higher basic minimum wage and their basic salary where an employee is required to work for a period of not less than One (1) Month in an occupation or grade for which the prescribed minimum wage is higher than the basic salary earned by the said employee. However, this provision applies to employees on a minimum wage.
Worthy of note is that within the public service realm, the provisions of Section 34  of the Public Service Commission Act, No. 10 of 2017 are authoritative to the effect that Public Officers can only serve in acting capacity for a period of One (1) Month, and up to a maximum period of Six (6) Months.
The foregoing notwithstanding, the provisions of Section 34 (5) of the Public Service Commission Act, No. 10 of 2017 provides that a public officer appointed in an acting capacity shall be duly qualified and competent to perform the duty at hand and that such appointment in an acting capacity shall not undermine the expeditious appointment or deployment of a competent person to the public office concerned.
How Long should an Employee be employed in an Acting Capacity?
There are no clear legal provisions as to the maximum period during which an employee can occupy a position in an acting capacity. However, Courts have held that such period ought to be a reasonable period to avoid an instance whereby an individual who has been employed in an acting capacity does not hold a legitimate expectation to be officially confirmed for that position.
More importantly is that a prolonged period of appointment of an employee in an acting capacity without being given the substantive appointment or relieved of their role in the said acting capacity amounts to discrimination and unreasonable and/or unfair labour practices on the part of the employer contrary to the provisions of Article 41 of the Constitution of Kenya, 2010 as read together with Section 5 of the Employment Act, No. 11 of 2007. This was espoused in the case of Edah Cherono Maiywa vs. University of Nairobi Enterprises and Services Limited  eKLR where the Claimant had been appointed in acting capacity position for a period of more than Three (3) years without being given a substantive appointment.
In the case of Silas Kaumbuthu Mbutura vs. Meru Central Dairy Co-operative Union Limited  Eklr,the Petitioner sought a declaration from the Court that he be confirmed as a production supervisor and further that the acting appointment was an unfair labour practice on account of being employed in an acting capacity for over a period of Eighteen (18) years. It was the Court’s finding that “for over 18 years of service, the Claimant was required by the Respondent to serve in an acting capacity for unexplained reasons of failure to be appointed substantively as a production supervisor or any other suitable position in the respondent’s establishment. Such conduct on the part of the Respondent, in the opinion of the court, was a gross violation of the claimant’s entitlement to fair labour practices as provided for in Article 41 of the Constitution.”
Whereas “institutions” have from time to time been inclined towards appointing an employee to occupy a particular position in an acting capacity in order to ensure continuity of an organization’s core business, it is important to note that such appointment should be on a temporary basis pending formal appointment of a new office holder, the same ought not to be inordinately prolonged as the individual appointed in an acting capacity would be entitled to have a legitimate expectation of confirmation. Failure to confirm such employee would otherwise be deemed and/construed to be an unfair labour practice.
Although the recent trend of appointment of employees in an acting capacity in both Government Agencies and private institutions has been widely accepted across all spheres, it is important for Parliament to amend the current Employment & Labour Laws to incorporate the regulation of such acts in order to safeguard the rights and freedoms of employees enshrined under the provisions of Article 41 of the Constitution of Kenya, 2010.