https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2160

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC MISCELLANEOUS APPLICATION NO. E002 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) JAMES WAIREGI WAMBUGU...….………..…….…. APPLICANT VERSUS COUNTY GOVERNMENT OF NYANDARUA……………………………….…...1ST RESPONDENT COUNTY PUBLIC SERVICE BOARD COUNTY GOVERNMENT OF NYANDARUA………………………………2ND RESPONDENT COUNTY SECRETARY COUNTY GOVERNMENT OF NYANDARUA…………………….…………… 3RD RESPONDENT RULING Introduction 1. The Respondents/Applicants filed a Notice of Motion dated 6th December 2024 seeking the following orders that: 1.Spent 2.This Honourable Court be pleased to set aside/review its orders issued on 24th October 2024 in favour of the Applicant NAKURU MISC NO. E002 OF 2025 RULING 1 | P A G E against the Applicants/Respondents in their entirety pending hearing and determination of this application. 3.Spent 4.Costs of the application be borne by the Applicant 2. The application is brought under sections 1A, 1B and 3A of the Civil Procedure Act, section 80 of the Civil Procedure Act, Rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024, Order 45 Rule 1 and Order 45 Rule 2(1) of the Civil Procedure Rules 2010, Order 51 Rule 1 of the Civil Procedure Rules, Article 50 of the Constitution of Kenya, 2020 and all other enabling provisions of the law. Respondent/Applicant’s case 3. The application is supported by the affidavit sworn by Alex Mwaura, the Respondent’s Chief Officer, Administration, dated even date, duly authorized to swear the affidavit on behalf of the Respondents. 4. The Respondent avers that the Applicant/Respondent filed an Originating Notice of Motion dated 15th October 2024 under a Certificate of NAKURU MISC NO. E002 OF 2025 RULING 2 | P A G E Urgency seeking interim orders to prevent stoppage of salary and benefits. The court certified the application as urgent, issued an order on 16th October 2024, and scheduled the hearing for 24th October 2024. Upon service, the matter proceeded to hearing on that date, where counsel for both sides presented their respective submissions. 5. The Respondents/Applicant aver that the court considered proceedings and orders in a matter concerning the dismissal of the Applicant/Respondent. The court found that a prima facie case had been established, indicating the dismissal process was incomplete, and issued interim orders restraining them from taking any adverse action against the Applicant’s employment, including stoppage of salary or termination. 6. The Respondents/Applicants aver that the matter was scheduled for further hearing on 7th November 2024, and the Respondents/Applicant through the County Attorney communicated the court’s directions to the relevant department. 7. The Respondent/Applicants aver that they filed their response on 6th November 2024, and during the hearing, their counsel maintained that the Applicant/Respondent had been dismissed. The court, NAKURU MISC NO. E002 OF 2025 RULING 3 | P A G E however, referred the matter to the Public Service Commission for appeal and extended the interim orders until determination of the appeal. 8. The Respondents/Applicants argue that the current order allegedly contravenes section 74(4)(6) of the Public Service Commission Act, which provides that disciplinary action shall not be deferred or suspended pending the determination of an appeal. 9. The Respondents/Applicant avers that section 77 of the County Governments Act, 2012, clarifies that appeals to the Public Service Commission do not suspend disciplinary action. The court scheduled a mention for 27th March 2025 to monitor the appeal’s progress. 10. The Respondents/Applicants argue that the interim orders, particularly orders 2 and 3, are oppressive and unjustified since the Applicant/Respondent remains dismissed and does not report to work, asserting that salary is payable only for work done. 11. The Respondents/Applicants maintain that the dismissal was lawful and unlikely to be overturned, but if the appeal succeeds, the Applicant should be reimbursed for unpaid dues; if unsuccessful, he should refund any salary paid during the appeal. NAKURU MISC NO. E002 OF 2025 RULING 4 | P A G E Applicant/Respondent’s replying affidavit 12. The Applicant/Respondent opposed the application vide a replying affidavit sworn by the Applicant/Respondent dated 27th December 2024. 13. The Applicant/Respondent aver that the application is misleading, filed in bad faith, and intended to obstruct justice by denying him the benefit of lawful court orders. 14. The Applicant/Respondent emphasizes that the court had already found a prima facie case showing his dismissal process was incomplete and issued interim orders barring adverse employment action, including stoppage of salary. 15. The Applicant/Respondent relied on section 77 of the County Governments Act, 2012 and sections 85 to 86 of the Public Service Commission Act, 2017, which establish that appeals from county decisions lie with the County Public Service Board and ultimately the Public Service Commission. 16. The Applicant/Respondent accuses the Respondents of contempt for ignoring and failing to comply with the court’s orders, including reinstatement and payment of accrued salary, despite repeated reminders and demand letters. NAKURU MISC NO. E002 OF 2025 RULING 5 | P A G E 17. The Applicant/Respondent further contends that the Respondents have deliberately obstructed his appeal by withholding his employment records from the County Public Service Board, thereby frustrating the appellate process. 18. The Applicant/Respondent also challenges the Respondents’ reliance on section 74(4)(6) of the Public Service Commission Act, arguing that “authorized officers” do not include county governments, and insists that their interpretation is misleading. 19. On procedure, the Applicant/Respondent asserts that the disciplinary process was flawed, investigations improperly conducted, and that only the County Public Service Board has the authority to make a final decision on dismissal. 20. The Applicant/Respondent concludes that the application is oppressive, designed to expose him and his family to hardship, and urges the court to dismiss it, enforce compliance with its orders, and protect the integrity of judicial authority. 21. Parties canvassed the application by way of written submissions. Respondents/Applicants’ written submissions NAKURU MISC NO. E002 OF 2025 RULING 6 | P A G E 22. The Respondents/Applicant submitted that they were procured through material non-disclosure and misrepresentation. The Respondents/Applicants argue that the Applicant misled the court by asserting that the dismissal process was incomplete, despite the existence of a dismissal letter dated 4th October 2024, the CHRMAC report of 18th September 2024, and prior disciplinary hearings. Reliance is placed on section 74 of the Public Service Commission Act, 2017, which expressly provides that disciplinary action shall not be deferred or suspended pending appeal, and on the doctrine of exhaustion, requiring parties to pursue statutory remedies before approaching the courts. 23. The Respondents/Applicant relied on the cases of Michael Mowesley v Kazungu Sana Sana & 2 Others* [2022] eKLR, the court held that material non-disclosure or concealment of facts warrants setting aside orders obtained on that basis. In *Ngigi v Direct Specialist Company Ltd* (Cause No. 2079 of 2026), the court found that interim orders had been issued due to non-disclosure of material facts and consequently set them aside. Similarly, in *Muka & Another v Malala & 12 Others; Commission for University NAKURU MISC NO. E002 OF 2025 RULING 7 | P A G E Education & 2 Others [2022] KEHC 10131 (KLR), the Court emphasized the doctrine of exhaustion, holding that disputes falling within the jurisdiction of specialized administrative bodies must first be resolved through those mechanisms before judicial intervention. 24. On this basis, the Respondents/Applicant submitted that the interim injunction improperly halted the County’s ability to implement a lawfully undertaken disciplinary decision, thereby usurping the statutory role of the Public Service Commission. The Respondents/Applicants contend that the balance of convenience and public interest favours lifting the injunction, as the County risks prejudice by being compelled to pay salary and benefits to an officer lawfully dismissed. 25.The Respondents/Applicant therefore pray that the interim orders be reviewed and discharged, the disciplinary decision of 4th October 2024 upheld, and the Applicant directed to pursue his remedy through the statutory appeal process before the Commission. Applicant/Respondent’s submissions NAKURU MISC NO. E002 OF 2025 RULING 8 | P A G E 26.The Applicant/Respondent submitted that the Respondents/Applicant have failed to meet the legal threshold for review or setting aside of the court’s orders of 24th October 2024, as their claim of dismissal is unfounded. The Applicant/Respondent argued that the court had already established a prima facie case showing that the dismissal process was incomplete, a position firmly supported by the Public Service Commission Disciplinary Manual, the County Appeals Procedures Regulations, 2022, and the Public Service Commission Human Resource Policies and Procedures Manual (2016, Revised 2020), all of which mandate a lawful, sequential, and complete disciplinary process before a valid dismissal can be effected. Crucially, the County Human Resource Management Advisory Committee (CHRMAC) only issued a recommendation, while the lawful authority to impose dismissal lies exclusively with the County Public Service Board (CPSB) under Article 235 of the Constitution, the County Government Act, and the PSC Regulations. 27. In the absence of a formal CPSB resolution, any purported dismissal is legally void, incomplete, and incapable of sustaining appellate jurisdiction. Thus, the Respondents’ application for review, premised NAKURU MISC NO. E002 OF 2025 RULING 9 | P A G E on a non-existent dismissal, amounts to a manifest abuse of judicial process and undermines the constitutional and statutory safeguards governing disciplinary control in County Governments. 28. The Applicant/Respondent submitted that it is well settled that a court may only review its decision on limited grounds: discovery of new and important evidence not previously available, a clear error apparent on the face of the record, or any other sufficient reason. The Respondents, however, have failed to meet any of these statutory requirements. No new evidence has been disclosed, and all issues raised, including the alleged dismissal and reliance on section 74 of the Public Service Commission Act, were already within their knowledge and canvassed before the court on 24th October 2024. Moreover, no error apparent has been demonstrated, as the Court’s finding that the disciplinary process was incomplete was a reasoned judicial determination, not a clerical mistake. The phrase “any other sufficient reason” under Order 45 Rule 1 cannot be invoked to re- litigate the same issues. As affirmed in Bamburi Special Products Limited v Remax Construction Limited; Gulbahar [2026] KEHC NAKURU MISC NO. E002 OF 2025 RULING 10 | P A G E 1089 and *Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya*, review proceedings are not appeals—dissatisfaction with a judgment does not qualify as a ground for review, and reappraisal of evidence or interpretation of law would amount to an impermissible exercise of appellate jurisdiction. Analysis and determination 29. The court has considered the application, supporting affidavit, replying affidavit and rival submissions by both counsels. The issue for determination is whether there are sufficient grounds for review of court’s determination issued on 24th October 2024 and so is the application merited. 30. Section 16 of the Employment and Labour Relations Court Act provides as follows: “The Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules.” 31.Rule 74(1) of the Employment and Labour Relations Court(Procedure) Rules 2024 provides as follows: “A person who is aggrieved by a decree or an order from NAKURU MISC NO. E002 OF 2025 RULING 11 | P A G E which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling: (a) if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b) on account of some mistake or error apparent on the face of the record; (c) if the judgment or ruling requires clarification; or (d) for any other sufficient reason.” 32.In Abdulkadir A Khalif v Principal Secretary Ministry of Lands & Physical Planning & 4 Others; National Land Commission & Another (Interested Parties) [2020] KECA 621 (KLR), the Court of Appeal stated as follows: “A review cannot be claimed or asked for (sic) merely for a fresh hearing or arguments or correction of an erroneous view taken earlier; that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it NAKURU MISC NO. E002 OF 2025 RULING 12 | P A G E or for any other sufficient reason. It may be pointed out that the expression “any other sufficient reason” means a reason sufficiently analogous to those specified in the rule. [22] Any attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out, would amount to an abuse of the liberty given to the court under the Act to review its judgment. [23] Review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.[24] It is my view, that the question of jurisdiction is a point of law, which, even if I were to find that I was wrong, it can only be corrected by way of an appeal. In other words, counsel is inviting this court to sit as an appellate court on its own decision, which I can’t do. Therefore, the plea for review fails.” 33. The Respondents/Applicants seek review of the court’s orders issued on 24th October 2024, where the Court found that a prima facie case had been established showing the dismissal process was NAKURU MISC NO. E002 OF 2025 RULING 13 | P A G E incomplete, and accordingly issued interim orders restraining them from taking adverse action against the Applicant’s employment, including stoppage of salary or termination. The Respondents/Applicants contend that the interim orders, particularly orders 2 and 3, are oppressive and unjustified since the Applicant/Respondent remains dismissed and does not report to work, arguing that salary is payable only for work actually performed. Conversely, the Applicant/Respondent maintains that the Respondents have deliberately obstructed his appeal by withholding employment records from the County Public Service Board, thereby frustrating the appellate process. The Applicant/Respondent argued that the disciplinary process was flawed, investigations improperly conducted, and that only the County Public Service Board has the lawful authority to make a final dismissal decision. The Applicant argued that the application is oppressive, and urges the Court to dismiss it and enforce compliance with its orders. 34. The Respondents/Applicants have not fulfilled the threshold of review as set out in section 16 of the Employment and Labour Relations Court Act and Rule 74(1) of the Employment and Labour Relations Court Act (Procedure) Rules 2024. NAKURU MISC NO. E002 OF 2025 RULING 14 | P A G E The Respondents/Applicants are arguing that the Applicant/Respondent dismissal was lawful and yet have not demonstrated or brought sufficient evidence to support their arguments, which could form discovery of new evidence when it came to review. The grounds that justify granting of Review Orders are clearly wanting from the Respondent’s evidence. There is no new grounds discovered, or error apparent on the face of the record. The orders granted on 24th October 2024 by a competent court with requisite jurisdiction to handle such matters were clear and unequivocal and court finds no reason to set the same aside or to review the same. 35. Having critically considered the pleadings and respective submissions of the parties, the court finds no merits to grant review of the Ruling delivered on 24th October 2024. The application is therefore dismissed. 36. Each party to bear its own costs. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 24th Day of July, 2026. NAKURU MISC NO. E002 OF 2025 RULING 15 | P A G E ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. NAKURU MISC NO. E002 OF 2025 RULING 16 | P A G E ANNA NGIBUINI MWAURE JUDGE NAKURU MISC NO. E002 OF 2025 RULING 17 | P A G E