https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9081

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CONSTITUTIONAL PETITION NO. E007 OF 2026** **SHARON CHEPNGETICH …………………………….. 1ST PETITIONER** **VARSITY CHEPKEMOI ……………………….………. 2ND PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT OF BOMET …... 1ST RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER** **FOR FINANCE, ICT AND ECONOMIC** **PLANNING ……..……………………………………... 2ND RESPONDENT** **COUNTY PUBLIC SERVICE BOARD ……………. 3RD RESPONDENT** **COUNTY TREASURY, BOMET COUNTY ……… 4TH RESPONDENT** **AND** **THE CONTROLLER OF BUDGET ……………. INTERESTED PARTY** **RULING** 1. Through the Notice of Motion Application dated 12th June 2026, the Petitioners sought the following Orders that: - 2. Spent. 3. Pending the interparties hearing of this Application, this Honourable Court be pleased to issue a conservatory order suspending the ongoing recruitment exercise being undertaken by the 3rd Respondent including conducting of interviews, the issuance of appointment letters and the assumption of office by any successful candidates. 4. Pending the interparties hearing of the Petition, this Honourable Court be pleased to issue a conservatory order suspending the ongoing recruitment exercise being undertaken by the 3rd Respondent including conducting of interviews, the issuance of appointment letters, the assumption of office and placement of successful candidates on the county payroll. **The Petitioners’ case** 1. Through the Supporting Affidavit sworn by Sharon Chepnegtich on 12th June 2026, the Petitioners stated that the 1st Respondent approved its Programme Based Budget and budget related estimates for the financial year 2025/2026 where the 1st Respondent allocated Kshs 3,917,738,131/= towards personal emoluments. That this allocation represented 47% of the 1st Respondent’s total revenue for the said financial year and had exceeded the 35% personal emoluments ceiling prescribed under **Regulation 25(1) (b) of the Public Finance Management (County Governments) Regulations, 2015.** 2. It was the Petitioners’ case that on May 2026, the 3rd Respondent published a notice which scheduled interviews across all sub counties and wards and that the interviews had begun and were ongoing. That if the recruitment exercise is allowed to continue, it will result in the permanent placement of additional staff further deepening the personal emoluments position which had already violated the 35% ceiling. The Petitioners further stated that if the successful candidates got employment letters, then they will acquire enforceable employment rights under **Article 41 of the Constitution of Kenya** and the **Employment Act.** That any order of this court at that stage would be impractical to enforce without exposing the 1st Respondent to employment litigation. **Response** 1. The 1st, 2nd and 4th Respondents filed their written submissions dated 26th June, 2026. They have submitted that the petition is incompetent, premature and an abuse of the court process. In it they have raised the issue of jurisdiction. That this is a matter for the Employment and Labour Relations Court. According to them personal emoluments ought to be assessed on the total county revenue. That the computation is based on an erroneous interpretation of the applicable legal framework. They argue that conditional grants allocation form part of the county government approved budget and revenue framework court and ought to be factored in computation. Further that the petition offends the doctrine of separation of powers and has failed to exhaust statutory mechanism hence premature and abuse of court process. 1. The 3rd Respondent filed grounds of opposition dated 12/6/2026. They have raised an issue of jurisdiction that this matter ought to go to the Employment and Labour Court. They have also raised the issue of doctrine of exhaustion of the statutory mechanisms. That the application does not meet the principles of granting of conservatory orders. 2. Through a Replying Affidavit dated 24th June 2026 and sworn by Cosmas Kipngetich Korir, the 5th Respondent stated that **section 8 of the County Governments Act** vested the 1st Respondent with the role of approving the budget and expenditure of the County Government. That the County Assembly makes laws that are necessary for the effective performance and exercise of powers of the 1st Respondent and the laws include appropriation laws which are mandatory for the 1st Respondent to access its allocations in the County Revenue Fund. 3. It was the 5th Respondent’s case that the allegation that the personal emolument had exceeded the 35% ceiling was farfetched and imaginary. That the right to conduct county job recruitment vests exclusively on the 3rd Respondent and it is obligated to observe the guiding values and principles of governance. It was the 5th Respondent’s further case that there was no infraction on the part of the 5th Respondent and they were being dragged into the proceedings without cause. 4. At this point, the court is concerned with the merits or demerits of prayer number 2 of the Application. It is trite law that the court has discretion on whether or not to grant interim conservatory orders and that such discretion ought to be exercised judiciously. 5. I have looked at the petition and the responses to it. I have considered the issue of jurisdiction and find that at the moment those to be recruited are not yet employees hence the issue of employer and employee has not yet set in so as to give to the Employment and Labour Relations Court jurisdiction. I have seen the prayers sought and find that most of the issues can be considered on merit by evidence being adduced. At this juncture it is prudent that the subject matter be preserved. The Applicant has raised issues that are weighty and ought to be considered. Consequently, I am inclined to grant prayer II on interim basis. I grant parties time to file further responses, pleadings or documents if need be. In the meantime, I will fix this matter for highlighting of the respective submissions so that the issue of prayer III can be gone into and/or the petition itself subject to agreement or concurrence of the parties. I therefore grant prayer II as follows:- 1. **“Pending the interparties hearing of this Application, this Honourable Court be pleased to issue a conservatory order suspending the ongoing recruitment exercise being undertaken by the 3rd Respondent including conducting of interviews, the issuance of appointment letters and the assumption of office by any successful candidates.”** 10.**Mention** on **13th July, 2026** for further orders/directions. **Ruling delivered via CTS at Bomet this 29th day of June, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE**