https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1750

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **PETITION NO. E207 OF 2025** **SALLY KIMAIYO ST PEITIONER** **HENRY JUMA WASIKE 2ND PETITIONER** **CHRISPINE POLO 3RD PEITIONER** *VERSUS* **KENYA RAILWAY CORPORATION 1ST RESPONDENT** **PUBLIC SERVICE COMMISSION 2ND RESPONDENT** **THE HON. ATTORNEY GENERAL 1ST RESPONDENT** **ETHICS AND ANTI-CORRUPTION** **COMMISSION 3RD RESPONDENT** **OFFICE OF THE DIRECTOR OF** **PUBLIC PROSECUTION 4TH RESPONDENT** **KENYA NATIONAL EXAMINATION** **COUNCIL 5TH RESPONDENT** **KENYA SCHOOL OF LAW 6TH RESPONDENT** **KENYA INSTITUTE OF MANAGEMENT 7TH RESPONDENT** **MINISTRY OF EDUCATION 8TH RESPONDENT** **JUDGMENT** The petitioners are seeking the following orders: 1. *A declaration that the 1st and 2nd respondents violated the petitioners’ rights as provided under articles 27, 43, 47 and 50 of the Constitution.* 2. *A declaration that the 1st and 2nd respondents violated article 3(1) and 10 of the constitution.* 3. *A declaration that by taking any adverse action against the petitioners, the respondents will be violating articles 25 and 28 of the Constitution.* 4. *An order restraining the respondents or their agents from taking any adverse action against the petitioners.* 5. *An order compelling the 1st respondent to pay the petitioners their employment benefits.* 6. *Costs of the petition.* The petition is that the petitioners are all adults. The 1st respondent is a state corporation. The 2nd respondent is constituted under Article 233 of the Constitution. The 3rd respondent is the official government advisor under Article 156 of the Constitution. The 4th respondent is a public body established under section 3(1) of the Ethics and Anti-Corruption Commission Act. The 5th respondent is established under the Kenya National Examination Council Act. The 6th respondent is established under the Kenya School of Law Act. The 7th respondent is a membership and non-profit organisation. The petition is that the 1st petitioner was appointed as a personnel clerk by the 1st respondent on 1 October 1992. She pursued various courses, including A levels at KACE in 1988-1989, an advanced certificate in business management at the Kenya Institute of Management in 2004-2005, and a Diploma in Marketing at the Kenya University of Management in 2005-2006. The 1st respondent appraised the 1st petitioner, and she met all expectations. On 19 October 2022, the 2nd respondent issued a directive to all Ministries, departments, and parastatals to conduct an audit of the academic qualifications and certifications of their employees and staff. On 16 November 2022, the 2nd Respondent specifically directed that the verification of academic certificates be conducted for officers recruited within the last 10 years. This covered until 1 January 2021. None of the petitioners fell within this period. They had been working for the 1st respondent for over 20 years. The 1st respondent allegedly conducted another verification of the petitioners' documents in an unverifiable process without any report. On this basis, the 1st respondent dismissed the petitioners from office through summary dismissal. No reason was given for why the verification was not done as directed. The petition is that the 2nd respondent instructed the 1st respondent to recover all the monies paid to the petitioners as salary for services already rendered by the petitioners and to institute prosecution proceedings against the petitioners. The petitioners contend that the process adopted by the 1st respondent violated their constitutional rights to a fair hearing and a fair administrative process. This violated articles 47 and 50 of the constitution. There were no records or notices issued before the summary dismissal. The 2nd respondent's directive to the 1st respondent to recover all salaries paid to the petitioners as salary for the services rendered and employment benefits is akin to slavery and servitude. This violates articles 27 on the right to be protected under the law, article 43 on the right to property, article 47 on fair administrative action, and article 50 on the right to a fair hearing. The intention to prosecute the petitioners is an abuse of power and office and contrary to Article 10 of the Constitution. This constitutes double jeopardy. The 1st petitioner filed a Supporting Affidavit in support of the petition. In reply to the petition, the 6th respondent filed the Reply Affidavit of **Jane Nabiki Kashu**, who avers that she is the principal research officer and head of the section. She has been with the 6th respondent since 1996 and has been the head of the achievements and records section since 2012. She is in charge of the authentication and confirmation of examination results. Kashu avers that the issues raised by the petitioners are regulated by the 6th respondent, particularly the authentication and confirmation of examination results. The petitioners have not produced any evidence of infringement of their constitutional rights. The 6th respondent is not a necessary party in these proceedings. Through a circular dated 19 October 2022, the 2nd respondent (PSC) issued a directive requiring authorised officers at ministries, departments, agencies, and state corporations to audit the academic and professional certificates of all newly appointed officers over the last 10 years and to submit a report by 1 January 2023. The PSC also directed that those found in breach, if found in possession of forged certificates, be dismissed from the service pursuant to the Public Service Commission Act and the Leadership and Integrity Act. The circular also required continuous validation of academic and professional certificates before appointments and promotions, and filing the same through compliance and quality assurance, as well as annual reports to the PSC. In compliance with the circular, the 1st respondent requested that the 6th respondent validate copies of academic certificates and results slips for their employees by letter dated 4 January 2023. The schedule of the copies was attached, along with copies of the certificates, and includes KCSE and KCE certificates from the 2nd and 3rd petitioners. These records and certificates were analysed, and through a letter dated 24 May 2023, the 6th respondent responded by establishing that: 1. A certificate issued to Odogo Chrispine did not register to sit for the year 1992 KCSE examination at Ngere High School under index number 71002/046 Index number 71002/046 belonged to Opiyo O. George during the 1992 KCSE examination, not to Odongo Chrispine, as stated in the purported copy of the certificate. 1. A candidate called Henry Juma Wasike did not register or sit for the 1983 KCE examination at Ruiru High School under index number 50410/025. An examination conducted by Ruiru High School during the 1983 KCE was 25028, not 50410, as indicated in the purported certificate. Kashu avers that the 6th respondent was able to ascertain and authenticate the certificate, but not the persons who submitted it. The petitioners, by invoking the court's jurisdiction, invite the court to sanitise these certificates. This is the administrative function of the 6th respondent and the specific academic institutions they attended. The petitioners have not adduced any evidence to establish that the academic documents produced belong to them. The petition should be dismissed. In the petition, the petitioners submitted that, in the orders sought, the court is justified in issuing conservatory orders, as they have demonstrated constitutional violations in which her rights have not been protected by the respondents. The 2nd respondent has instructed the 1st respondent to recover all monies paid to the petitioners as salary during their employment. They render services to the 1st respondent, the employer, and such a measure would constitute double jeopardy. Conservatory orders are necessary as held in **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR.** The petitioners submitted that they had worked diligently for the respondent. Before they were terminated, they were not afforded due process to justify the sanction and the recovery of the salaries paid. The directions that they should be prosecuted are contrary to the rules of natural justice and should be restrained by an order of the court. Under section 18(4) of the Employment Act, where there is summary dismissal for a lawful cause, the employee is entitled to all monies earned for work done. Also, any pension due is payable upon termination of employment. In **Feslister Waithiegeni Mugweru v National Police Service Commission & 2 others [2018] eKLR**, the court held that under section 5(2) of the Pensions Act, the pension due upon dismissal of a public officer is payable. The petitioners also submitted in **ELRC Petition E049 of 2024, Agure & 6 others v Kenya Railways Corporation & 7 others**, that despite the summary dismissal of the employees, they were entitled to their pension dues. The petition should be allowed as prayed. The 1st respondent submitted that the petitioners’ employment was secured through forged academic certificates allegedly obtained from various institutions. They allege that the employment was terminated pursuant to the 2nd respondent's circular dated 19 October 2022, which required the 1st respondent to authenticate the academic certificates of employees who had been employed for 10 years immediately preceding the communication. The petitioners contended that they had served for more than 10 years and were not subject to the PSC circular. The 1st respondent submitted that the petitioners were employed by the Rift Valley Railways (Kenya) Limited: 1. 1st petitioner was employed on 24 October 2017 as a data controller. On 25 February 2021, she was appointed as a customer service assistant on the understanding that she held a Diploma Certificate. 2. The 2nd petitioner was employed as a statin master on 10 August 2020 on the premise of KCSE, which indicated that he was from Ruiru High School. 3. The 3rd petitioner was employed on 23 November 2017 as a team leader on contract and then on permanent terms on 25 February 2021 on the premise of a KCSE certificate from St. John Rakwaro Secondary School. The 1st respondent submitted that all the petitioners fell under the bracket of the PSC circular. Their certificates were sent to the 6th respondent for authentication and were found wanting. It was established that these certificates were forgeries, but were used to secure employment with the 1st responder. There are no rights violations as alleged. The resulting termination of employment is justified as the orders sought in the petition should not be issued. In **Nyachae v Kenya Orient Insurance Limited [2023] eKLR,** the court held that there was no proof of discriminatory treatment in a case where the employee alleged that they had received different treatment from other employees. The alleged violation of Article 43 of the Constitution is not correct/ the petitioners cannot benefit from an illegality by seeking employment dues based on fraudulently obtained employment. There were valid reasons for terminating employment as held in **Abdi Mohammed Daib v Kenya Ports Authority [2016] eKLR.** The right to fair administrative action and hearing can only accrue where there are existing rights. Fairness demands that a party be informed of any material that may influence a decision. However, in this case, the petitioners were aware that they had secured employment through fraud and hence cannot justify the orders sought in the petition. The 2nd respondent submitted that the petitioners were dismissed from service by letters dated 21 July 2023 for good cause. They now seek, through this petition, to stop any adverse action against them in the recovery proceedings. The 2nd respondent, as a constitutional commission under Article 234 of the Constitution, has the mandate to ensure equality in the public service. This is to ensure the public service is accountable. Through a circular dated 19 October 2022, the PSC directed that an audit of academic and professional certificates from all newly appointed officers in the public service be undertaken. It is good that any officer in possession of forged certificates be dismissed from service in accordance with the Public Service Commission Act, the Public Officer Ethics Act and the Leadership and Integrity Act. Through a circular dated 19 October 2023, the PSC gave further guidance that any employment-based forged certificates are void *ab initio* and such employment should be declared null and void from the date of appointment. Such persons should not be entitled to any form of benefits, including pensions or unpaid allowances and accrued leave. The cases should be referred to the Director of Criminal Investigations for prosecution and recovery of monies owed and assets procured from the fraudulent activities. The 2nd respondent submitted that due to the gravity of the matter of obtaining employment through forged certificates, the PSC issued further circulars dated 22 May 2023, 20 February 2024 and 8 May 2025. The latest circular directed that all academic certificates for all officers, irrespective of date of employment in the public service, must be authenticated, with appropriate action being taken against such persons. The petitioners have come to court at the onset of recovery proceedings. The plea that the circular dated 19 October 2022 did not cover them is baseless on account of the circulars issued to clarify the position. This denies the court jurisdiction since the employment was fraudulently obtained. There are no rights violations to justify the instant constitutional petition as outlined in **Mumo Matemu v Trusted Society of Human Rights Alliance [2023] eKLR.** The 2nd respondent submitted that the petition is filed to circumvent employment law by invoking the constitutional petition route. In **Josphat Ndirangu v Henkel Chemicals (EA) Ltd [2013] eKLR,** the court held that a litigant should not avoid the provisions of the Employment Act regarding alleged unfair termination of employment by going behind the statute and seeking to rely directly on article 41 of the Constitution. In **Francis Atonya Ayeka v The Kenya Police Service & another, ELRC Petition N. 37 of 2017**, the court held that it is not the name assigned to the pleadings, a petition, or a memorandum of claim, but rather the nature of the claim and the remedies sought that matter. These must be taken into account. In the case of **Elizabeth Mburu v Kenya Breweries Ltd [2014] eKLR**, the court held that not all employment disputes are constitutionally issued. In **Sumayya Athmani Hassan v Paul Simidi & another [2019] eKLR,** the court held that the rights under Article 41 of the Constitution have been legislated under the Employment Act and the Labour Relations Act. Unless the law addresses a certain matter, a party should not invoke the constitutional petition route. The petitioners have not addressed which violations of their rights are not secured under the law, thereby precluding them from filing a constitutional petition. This is not a proper petition and should be dismissed. The 2nd respondent submitted that the petitioners' employment was, hence, obtained through illegal means and was therefore fraudulent. They cannot benefit from such conduct. Under Article 232(g) of the Constitution, the PSC is required to ensure that appointments are made based on merit and fairness. In **Abdi Mohammed Daib v Kenya Ports Authority [2016] eKLR,** the court held that the respondent, as the employer, was entitled to hold the belief that the employee had obtained employment using forged documents. Such was sufficient reason for dismissal from employment. The 2nd respondent in undertaking its mandate under the constitution. The petition does not meet the constitutional threshold, and there are no violations of the rights of the petitioners who obtained employment through fraud using forged certificates. The petition should be dismissed with costs. The 6th respondent submitted that, following the PSC circular and directives dated 19 October 2022, they authenticated certificates submitted by the petitioner and established that they did not match. Upon verification of what they had submitted, upon undertaking investigations and authentication, it performed its statutory duty and reported back to the PSC. In **Abdi Mohammed Daib v Kenya Ports Authority [2016] eKLR,** the court held that verified certificates established the employee was not the owner. He had used the forged certificate to seek employment without any justification. This position is reiterated in **Janet Melly Otieno v Kenya Ports Authority [2018] eKLR**, which holds that under section 44 of the Employment Act, the employer is entitled to issue a notice of summary dismissal where the employee has secured employment using forged academic documents. This is not a proper petition as defined under **Anarita Karimi Njeru v Republic [1979] KEHC.** The issues addressed in the petition comprise an ordinary suit, and the same should be dismissed with costs. **Determination** On the pleadings, affidavits, and written submissions, the issues which emerge for determination are: Whether this is a proper petition. Whether there are constitutional violations. Whether the respondents should be restrained from taking any adverse action against the petitioners. Whether the remedies sought by the petitioners should be issued. The petitioners assert that, following a circular and directives from the 2nd respondent dated 19 October 2022 to authenticate academic certificates, the 1st respondent, as the employer, went beyond the circular, which only required newly employed officers to be subject to such measures. Upon a report by the 6th respondent, the 1st respondent, as the employer, terminated employment and has failed to pay terminal dues. Strangely, the petitioners do not challenge the 6th respondent's findings regarding the copies of the submitted and authenticated certificates. These certificates were used to secure employment. They have since been established as forged. Through forged certificates, the petitioners obtained public employment with the 1st respondent. **Is this a proper petition?** The petition sets out ordinary claims that can well be addressed under a Memorandum of Claim as outlined in Rule 10 of the Employment and Labour Relations Court (Procedure) Rules. A party is permitted under the Rules to file a claim alleging a violation of constitutional rights. Rule 10(1) and (2) allow as flows: ***10. (1) Any person who wishes to institute a petition shall do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules.*** ***(2) …*** ***(3) Notwithstanding anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any constitutional provision in a statement of claim or other suit filed before the Court.*** In **Muraguri v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others [2026] KECA 980 (KLR),** the court held that where the underlying issue is the violation of employment rights, benefits, or other claims, such claims are secured under the Employment Act or Labour Relations Act. The rights stem from Article 41 of the Constitution. A party need not invoke a constitutional mandate in such circumstances. This was the gist of the findings in **Sumayya Atmani Hassan v Paul Simidi & another [2019] eKLR**: where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. The primary legislation should not be circumvented by relying on a constitutional provision. The petitioner’s employment was terminated through summary dismissal on 21 July 2023. The orders sought can well be addressed in a Memorandum of Claim without the needless invocation of the constitutional petition route. This is not a proper petition. As to whether there are constitutional violations, the findings above are moot. However, the remedies sought are based on the premise that, despite the termination of employment, the petitioners claim their terminal dues, including payment of pensions. However, one cannot benefit from an illegality. The fact that employment was obtained through forged certificates is not challenged. The fact of existing fraud is not denied. The report by the 6th respondent upon authenticating the submitted copies of certificates used to obtain employment with the 1st respondent is not controverted. The employment of the petitioners obtained through fraud was null and void *ab initio*. No right can be founded on an illegality. In **Benta Adoyo Ojode v Elizabeth Okelo & another [2021] KEELC 3918 (KLR)****,** the court analysed similar facts and held that: *… one cannot benefit from an illegality, and any dealings with regard to the suit property are null and void.* In **Ngii v Rowda Mosque & 2 others [2025] KEHC 6872 (KLR)**, the court held that one can't justify a claim based on unethical, unprocedural, and illegal activities; hence, no binding contract could arise from these illegalities. The petitioners can therefore not ride on illegally obtained employment to seek benefits therefrom. Such would negate the very essence of the reasons leading to termination of employment by summary dismissal. The orders sought are without merit and not justified. **The petition is hereby dismissed. The petitioners shall meet costs due to the respondents, save for the 5th, 7th, and 8th respondents.** **Delivered virtually this 25th June 2026.** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistants: Nelson Kemboi and Catherine Makau** ……………………………………………… and ………………….…………………………...