Employees who miss out on promotions are entitled to access records relating to their interviews, including their scorecards and the reasons they were not selected, the Employment and Labour Relations Court has ruled.
In a judgment delivered on July 28, Justice Dr. Jacob Gakeri held that while employers have the discretion to promote candidates, unsuccessful applicants have a right to information relating to their own interviews to enable them to understand the outcome and, where necessary, challenge the decision.
The ruling arose from a petition filed by Principal Magistrate Gathogo Sogomo, who challenged his exclusion from promotion to the position of Senior Principal Magistrate.
Sogomo told the court that he joined the Judiciary as a Resident Magistrate in June 2004 and was promoted to Principal Magistrate in November 2018.
He said he was invited for interviews for promotion in August 2025 but was not among the successful candidates despite what he described as an outstanding performance record.
He further argued that he had been overlooked during the 2023 and 2024 promotion exercises and that his repeated requests for information explaining the decisions had gone unanswered.
Court Rules Unsuccessful Promotion Candidates Have Right to Interview Scorecards
The petitioner sought access to his interview scorecards, the interview panel’s recommendations, minutes of the commission’s deliberations and written reasons for his non-promotion.
The court held that an unsuccessful candidate is entitled to access information concerning his or her own interview, including the interview scorecard and the reasons for non-promotion, in line with the constitutional right to access information and fair administrative action.
“In the courts view, there is no justifiable reason as to why the Petitioner should not be given the scores he secured in the various aspects of the interview and the total mark vis-à vis the threshold. The information, may be a useful guide when he is preparing for future interviews,” the court ruled.
“As adverted to elsewhere in this judgment the court is satisfied that the petitioner is entitled to the information sought namely: Reason(s) for non-promotion; Interview score card; Panel’s recommendation; Respondent’s decision.”
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Court Affirms Right to Access Promotion Records
Justice Jacob Gakeri held that Article 35 of the Constitution guarantees every person the right to access information held by the State, as well as information held by another person where it is required for the exercise or protection of a right or fundamental freedom.
The judge noted that after the petitioner formally requested the information in writing, the respondent was obligated to provide it within a reasonable time, subject only to safeguards necessary to protect the integrity of the interview process.
The petitioner had also asked the court to declare that his constitutional rights had been violated and sought damages, arguing that the repeated failure to promote him had caused career stagnation, emotional distress and loss of morale.
The court, however, found that there was no evidence that the promotion process had been conducted unfairly or that the employer had violated the petitioner’s constitutional rights.
Justice Gakeri held that courts should not interfere with an employer’s promotion decisions unless there is proof of illegality, procedural unfairness or violation of constitutional rights.
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The petition therefore succeeded only to the extent of compelling the release of the petitioner’s interview records, with each party ordered to bear its own legal costs.
The decision is expected to reinforce the right of employees in both the public and private sectors to seek information relating to promotion interviews while reaffirming that courts will not substitute an employer’s assessment of candidates unless there is evidence of unlawful or unfair conduct.
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