https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2108

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS ELRC PETITION NO. E009 OF 2026 IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS AСТ AND IN EMPLOYMENT THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND BREACH OF RIGHT UNDER ARTICLES 2,10, 22, 23, 27, 28, 41,47(1) & (2),50 AND 236 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF COUNTY GOVERNMENTS ACT NO. 17 OF 2022 AND IN THE MATTER OF THE ALLEGED ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL REMOVAL FROM OFFICE OF A COUNTY CHIEF OFFICER, MACHAKOS COUNTY GOVERNMENT BETWEEN МЕТНО BENSON KITUKU ……………………………………………………………………….………PETITIONER VERSUS THE GOVERNOR, MACHAKOS COUNTY……………………………………………….1ST RESPONDENT THE COUNTY GOVERNMENT OF MАСНАКОS. ……………………………….….2ND RESPONDENT THE SECRETARY/CHIEF EXECUTIVE OFFICER, MACHAKOS COUNTY PUBLIC SERVICE BOARD…………………………………...3RD RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The petitioner, upon the termination of his services by the 3rd respondent, filed a petition dated 12th June 2026, alleging violations of his constitutional rights in the termination of his employment contract and seeking the following relief- a) A declaration that the 3rd Respondents action to terminate the employment of the Petitioner without issuing a notice to show cause or conducting a disciplinary hearing was unlawful and inconsistent with the provisions of Article 2, 27,41,47,50 and 236 of the Constitution and provisions of the Employment Act and County Governments Act. b) A declaration that the rights of the petitioner guaranteed and protected under Articles 27,28,41,47,50 and 236 of the Constitution have been violated by the respondents. c) An order of certiorari be issued to bring to the Honourable Court for purposes of quashing forthwith the letter of termination of contract of employment dated 14th January 2026 and reinstate the Petitioner forthwith. d) A declaration that the process employed by the respondents in terminating the petitioner was prejudicial, Unconstitutional and in gross violation of the petitioner's rights as guaranteed under Articles 10, 27, 28, 47, 50 and 236 of the Constitution. e) General damages for violation of the petitioner's constitutional rights. f) The petitioner be paid his salary and accompanying benefits from the month of January, 2026. g) In the alternative; the petitioner be paid salary in full for the remaining period of his contract. h) Costs of the petition and interest at court rate be granted to the petitioner. i) Any other relief that the court deems fit. 1. Together with the petition was an application of even date by way of Notice of Motion brought under Articles 2, 10, 22, 23, 27, 28 41, 47, 50 and 236 of the Constitution of Kenya seeking for the following orders- 2. Spent. 3. THAT pending the hearing and determination of this Petition interparties a conservatory order does issue staying the termination of the contract of employment of the Petitioner which was terminated on 14th January 2026. 4. THAT the pending the hearing and determination of this Petition, the Petitioner is reinstated back to his position as a County Chief Officer and his salary and employment contract be reinstated. 5. THAT the Respondents bear the costs for this Application. Grounds of the application 1. That on 9th January 2023, the 1st Respondent appointed the Petitioner to serve the 2nd Respondent as a County Chief Officer and his contract was renewed on 3rd July 2025 to continue serving in the same position. 2. That on 14th January 2026, the 3rd Respondent unceremoniously terminated the employment contract of the Petitioner without conducting any disciplinary process and hearing or providing valid reasons for termination as required by the law therefore infringing on the Petitioner’s Constitutional rights. 3. That the respondents have blatantly violated the following Petitioner's Constitutional rights, inter alia: - a) The right to fair labour practices as provided in Article 41 by terminating the employment of the Petitioner without following the appropriate procedures. b) The right to fair administrative action as provided under Article 47 by refusing to provide the Petitioner with valid reasons for his termination; and c) The right to fair hearing as provided in Article 50 by failing to conduct a disciplinary hearing and according the petitioner an opportunity to defend himself. 1. That the 3rd Respondent's actions above have left the Petitioner unemployed and with no other source of income to support himself, his family and dependants, leaving him in an undignified position both financially and emotionally. 2. That the Petitioner is apprehensive that he will suffer injustice if he is not reinstated back to work and his employment contract restored pending the hearing and determination of this Petition. 3. The petitioner filed his affidavit sworn on even date in support of the application where he annexed his letter of appointment, contract renewal and the termination letter. He filed a further affidavit dated 15th May 2026 in response to the replying affidavit by the respondent. On perusal of the Case Tracking System (CTS) the court only found notice of appointment and submissions by the respondent filed by Osiemo Wanyonyi & Company advocates. 4. The parties canvassed the application orally on the 5th June 2026. They also filed written submissions. Decision 1. The court found the issue for determination to be whether the application was merited. 2. The substantive orders sought in the application were as follows- 3. THAT pending the hearing and determination of this Petition interparties a conservatory order does issue staying the termination of the contract of employment of the Petitioner which was terminated on 14th January 2026. 4. THAT the pending the hearing and determination of this Petition, the Petitioner is reinstated back to his position as a County Chief Officer and his salary and employment contract be reinstated. 5. The applicant was employed vide a letter dated 9th January 2023, under a contract of 2½ years as County Chief Officer of Environment issued under hand of the Machakos County Governor, H. E. Hon Wavinya Ndeti (MBK1). The contract was renewed by letter dated 3rd July 2025, effective from 3rd July 2025 until 30th October 2027 (MBK2). The applicant was issued with a letter dated 14th January 2026 regarding the termination of the contract. The letter stated: ‘ TERMINATION OF CONTRACT. Reference is made to the above subject. This is to communicate the decision of the executive to terminate your contract effective 14th January, 2026. Please note that you will be paid one month’s salary in lieu of notice, as guided under Section D.20 of the Human Resource Policies and Procedures Manual. Kindly ensure you hand over all Machakos County Government assets in your possession.' The letter was signed by the Machakos County Secretary, Dr Juliana Mutisya (MBK3). 1. The petitioner submitted that his right to fair labour rights have been violated and cited Articles 41, 47, and 50 of the Constitution. He relied on the decision in Postal Corporation v Andrew K Tanui on fair procedure and stated that the grounds for the termination were not explained, and no reason was given in the letter of termination nor a procedural hearing afforded. On that basis, he sought reinstatement at the interlocutory stage. 2. Conversely, the respondents submitted that they filed a replying affidavit and demonstrated that there was an administrative process (The court did not find the replying affidavit in the CTS). The respondent submitted that the reinstatement is a final remedy and cannot be granted prematurely at the interim stage. 3. The essential requirements for procedural fairness were laid down in Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR as follows: "Four elements must thus be discernible for the procedure to pass muster: (i) an explanation of the grounds of termination in a language understood by the employee; (ii) the reason for which the employer is considering termination; (iii) entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made; (iv) hearing and considering any representations made by the employee and the person chosen by the employeе." Further, in the case of Kenfreight (EA) Limited V. Benson K. Nguti [2016]eKLR, the Court of Appeal at Mombasa held that:- "It is considered unfair to terminate contract of service if the employer fails to demonstrate that the reason for the termination is valid and fair, that reason related to the employee's conduct, capacity and compatibility or is based on the operational requirements of the employer. The employer must also prove that the termination was in accordance with fair procedure...Apart from issuing proper Notice according to the contract (or payment in lieu of Notice as provided), an employer is duty-bound to explain to an employee in the presence of another employee or union official, in a language the employee understands, the reason or reasons for which the employer is considering termination of the contract. In addition, an employee is entitled to be heard and his representations, if any, considered by an employer before the decision to terminate his contract of service". 4. In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR), the Court held that conservatory orders are granted on the inherent merit of a case while taking into account constitutional values, proportionality, public interest and the need to preserve the substratum of the dispute. The Honourable Court in its determination stated as hereunder; ‘25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others -v- The Attorney General [HCCP No. 16 of 2011]: "[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner's application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution". 5. What is sought to be conserved in the instant application? The contract was terminated. I find there is no substratum of the dispute to be conserved. The petitioner must prove unfair termination for the court to consider the order of reinstatement as a remedy. This is so because reinstatement is a final order that can only be granted on merit, and as a final remedy under section 49 of the Employment Act. That order of reinstatement is thus a substantive order. I upheld the decision in Alfred Nyungu Kimungui V Bomas Of Kenya [2013] KEELRC 235 (KLR)‘16. Although the Industrial Court has jurisdiction as argued by the Claimant to grant a wide range on interim reliefs and remedies in employment and labour disputes, it must exercise caution and draw a distinction between workplace disciplinary process, and the judicial process. Judicial officers should not descend into the arena of the disciplinary process, determining how termination letters should be written or nullifying termination letters. The Court agrees entirely with the Respondent that, whether termination was unlawful or unfair, cannot be determined at the interlocutory stage. It is a matter to be decided upon the full presentation of facts.’ The Employment and Labour Relations Court (procedural ) Rules 2024 expressly prohibit issuance of order of reinstatement at interlocutory stage as follows -‘53. Court not to grant orders of reinstatement Notwithstanding anything contained in this Rule, the Court shall not grant an *ex parte* order that reinstates into employment an employee whose services have been terminated.’ The services of the applicant were terminated vide letter of 14th January 2026(MBK3) . The court has no judicial authority or discretion to reinstate the petitioner to employment at the interlocutory stage. Only on finding unfair termination, can the court consider the order sought of reinstatement under the provisions of section 12 of the Employment and Labour Relations Court Act and section 49 of the Employment Act. The application is held to be premature and is disallowed with costs to the respondent in the cause. 1. The court, suo moto, perused the petition and the prayers sought and found that this was a case of constitutional avoidance. The violation was of fair labour rights . The violation of fair labour rights falls under statute, the Employment Act and the Labour Relations Act. The fair labour rights under contract are protected under sections 41,43 and 45 of the Employment Act. The petitioner is an employee of the county public service board thus falling under the jurisdiction of the Public Service Commission at the first instance under Article 234(2)(i) of the Constitution which gives the commission the mandate as follows- ‘hear and determine appeals in respect of county governments’ public service; ‘ The mandate is legislated in section 77 of the County Governments Act as read together with section 85 of the Public Service Act. Section 77 of the County Governments Act provides as follows: ' 77. Appeals to the Public Service Commission (1)Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the "Commission") against the decision. (2)The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of— (a)recruitment, selection, appointment and qualifications attached to any office; (b)remuneration and terms and conditions of service; (c)disciplinary control; (d)national values and principles of governance, under Article 10, and, values and principles of public service under Article 232 of the Constitution; (e)retirement and other removal from service; (f)pension benefits, gratuity and any other terminal benefits; or (g)any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard. (3)An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of the Commission, the circumstances warrant it. (4)The Commission shall not entertain an appeal more than once in respect to the same decision.’ 1. The petitioner was removed from office vide the letter of termination of contract (MBK3). I find there is an alternative clear procedure of redress which can determine the fairness of the termination being pursued herein as held in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) that – ‘where there is a clear procedure for the redress of any particular grievance prescribed by the [*Constitution*](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution%20of%20Kenya%20%28Repealed%29.pdf) or an Act of Parliament, that procedure should be strictly followed.’ The Court of Appeal set a side High Court decision for assuming jurisdiction in a judicial review matter of the County Public Service Board in Secretary County Public Service Board & another v Hulbhai Gedi Abdille [2016] eKLR and held as follows- ‘There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. The court said In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.’’ I hold that the court lacks first instant jurisdiction in the cause of action. 2. The court invokes Article 234(2)(I) of the Constitution, section 77 of the County Governments Act, and its own Rule 56, and declares the petition to be a case of constitutional avoidance and in violation of the doctrine of exhaustion. The court refers the dispute to the Public Service Commission for the exercise of its jurisdiction (supra). The petitioner is directed to lodge an appeal before the Commission under section 77 of the County Governments Act. The matter is held in abeyance as per Rule 56 of the ELRC (Procedural) Rules 2024. Mention is set for 18th September 2026 to confirm the status and issue directions on the final order regarding the costs of the application and petition. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner- Wambua Respondent – Ms Naibei h/b Osiemo