https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2139

Kojo v Commission on Administrative Justice (Cause E272 of 2024) [2026] KEELRC 2139 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2139 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E272 of 2024 ON Makau, J July 23, 2026 Between Owino Kojo Claimant and Commission on Administrative Justice Respondent Judgment Introduction 1.At all material times to this suit the Claimant was employed by the Respondent as a Legal Officer and later as a Senior Legal Officer. By a Statement of Claim dated 15th April 2024, the Claimant sued the Respondent accusing it of unfair, unlawful, and illegal transfers, discrimination, unfair treatment, unfair administrative action, and withholding of his lawful dues. Therefore, he prayed for the following: -i.A declaration that the chairperson of the Commission on Administrative Justice Staff Welfare Association (CAJSWA) should be based at the Association's office which is the Respondent's headquarters in Nairobi.ii.A declaration that the Respondent's resolution to transfer the Claimant to its Nyahururu Regional Office at a time when he was serving as Chairperson of CAJSWA was unfair, unlawful, and in bad faith.iii.An order quashing the Respondent's decision to transfer the Claimant to Nyahururu Regional Office.iv.A declaration that when an employee of the Respondent below the level of a chief officer is called upon to head a regional office, he/she is entitled to be paid special duty allowance at the rate of 15% of the employee's basic salary.v.A declaration that Respondent's officers of grades 7-11 are not eligible to head regional offices by dint of clause C.15(3) of the Public Service Commission Human Resource Policies and Procedures Manual for the Public Service (2016).vi.A declaration that the Claimant's action of changing his sitting position within the office was justified and did not in any way constitute a misconduct on the part of the Claimant.vii.A declaration that the Claimant's transfer to Siaya, back to Nairobi, to Bungoma and to Nairobi again was unfair, unlawful and unconstitutional.viii.A declaration that the Claimant was treated in a discriminatory, unlawful, unconstitutional and unfair manner by the Respondent and the Respondent's management team on several occasions.ix.The Respondent be and is hereby directed to take the necessary steps to enact a transfer policy taking into account the constitutional requirement of public participation.x.An order awarding the Claimant general damages for discrimination and unfair treatment.xi.An order awarding the Claimant exemplary damages for breach of his constitutional right to fair administrative action.xii.Special damages in terms of Claimant's withheld dues as enumerated under paragraph 48 of the statement of claim.xiii.Refund of Kshs. 78,880 paid to the Kenya School of Government.xiv.Special duty allowance of Kshs. 787,854.6 being 15% of his basic salary for 18 months.xv.Interest on xi, xii, and xiii above from the time the cause of action first arose to the date when payment is made in full.xvi.Costs of the suit. 2.The Respondent filed a Response to the Statement of Claim dated 13th May 2024 admitting employment relationship with the claimant but denied all the other allegations by the claimant. I averred that the reliefs sought by the claimant are either time barred or unwarranted. Therefore, it prayed for dismissal of the suit with costs. 3.The Claimant filed a Reply to Respondent's Response to dated 11th July 2024 joining issues with the Respondent and reiterating the contents of the Statement of Claim. He further admitted paragraphs 2, 3, 17, 23, 28, and 36 of the Response and denied the rest. Evidence 4.The Claimant testified as CW1 on 17th December 2025. He adopted his witness statement dated 15th April 2024 as his testimony. He produced a bundle of 57 documents and a supplementary bundle of documents as exhibits, which were marked as Exhibits 1-58 respectively. 5.In brief his case was that he was employed by the respondent on 4th June 2015 as a Legal Officer in the Legal Department under the supervision of the Director Legal & Advisory Services. During the interview for the job, he was asked to state his preferred work station and he categorically indicated Nairobi. 6.He stated that despite indicating his preferred work station, he was transferred to five different stations away from Nairobi. He contended that the transfers were done in a discriminatory, unlawful, unconstitutional and unfair manner as elaborated in his Statement of Claim. 7.He further stated that the transfers interfered with discharge of his functions as the Chairperson of the Commission on Administrative Justice Staff Welfare Association (CAJSWA) which is based in the respondents Head Office in Nairobi. His functions included convening meetings for the Association and the Executive committee, chairing the said meetings and authorizing payments on behalf of the Association. 8.He also contended that as a result of the Respondent’s unlawful actions he suffered loss, deterioration of health, mental anguish and is currently nursing post-traumatic stress disorder. 9.On cross-examination, he stated that he is still an employee of the Respondent but is challenging his transfer to Nyahururu. The transfer was done in May 2024 and he is still based there. He admitted that he was paid his transfer allowance and his job title remains Senior Legal Officer. 10.He contended that he should not have been transferred from Nairobi because he was the chairperson of the Respondent's Staff Welfare Association, but he has since ceased being the chairperson. He maintained that, as a matter of good practice, the chairperson of the Welfare Association should only work in Nairobi. 11.He testified that in July 2015, he was transferred to Siaya and reported but admitted that he has not filed receipts to prove transport expenses incurred. He also admitted that he was paid a transfer allowance in August 2015 for the said transfer to Siaya, where he remained until 25th August 2015 when he received a phone call directing him to report back to Nairobi. 12.He further stated that he was again transferred to Bungoma on 12th October 2015 where he worked for 1½ years and then in April 2017 he was transferred back to Nairobi. He confirmed that he was paid his transfer allowance and remained in Nairobi until 2024. He admitted that the employer has power to transfer him from one station to another provided it acts within the law. 13.He contended that he sued the employer challenging disciplinary proceedings about his change of sitting arrangement, but he was coerced by a commissioner to withdraw it. He declined to name the commissioner who coerced him to withdraw the suit. 14.He stated that he is claiming special duty allowance but admitted that he has not provided evidence of work done outside his job description. 15.He also stated that he is claiming overtime and his evidence is Document 14 (page 24 of his bundle), which is a letter for extraneous allowance for work he did in the Huduma Centre. He stated he worked over and above the required hours. He referred to page 27, his letter dated 19th April 2016, about his claim for overtime. 16.He stated that pages 54-68 contain a Biannual report, which was before he reported in Nyahururu, and admitted that he has not filed a similar claim for overtime for the period he was in Bungoma. 17.He admitted that he attended training that was paid for by the employer. He claimed special duty allowance but did not have any document allocating him special duties. He relied on the PSC HR policy and the Respondent's HR Policy to support his claim. He contended that he has sought an order to compel the Respondent to come up with a transfer policy but on being shown page 59 of the Respondent's Bundle, he confirmed that there is indeed a transfer policy guideline under clause 2.16 of the Respondent's HR Policy for Procedures Manual. 18.In re-examination, the Claimant stated that he worked for 2 months in Nairobi before transfer to Siaya. He contended that the policy provides for at least 3 years before transfer. There was no office to occupy in Siaya. He had no expenditures for Siaya because he was staying in his rural home in Siaya. 19.He worked in Nairobi for 2 months before he was again transferred to Bungoma. In Bungoma, his office was at Bungoma Huduma Centre. He abandoned the prayer for cancellation of the transfer to Nyahururu. 20.The Respondent called its Director Corporate Services and the Acting CEO, Mr. Daniel Mwangi Karomo as RW1. He adopted his witness statement dated 17th March 2025 as his testimony and produced a bundle of 16 documents and a supplementary bundle of 3 documents as exhibits. The documents were marked as Exhibits D1-19 respectively. 21.In brief, he stated that the Claimant was employed as a Legal Officer under job group CAJ Grade 7 vide a letter dated 20th July 2015, and was deployed to Siaya County office with effect from 1st September 2015. He was also paid his transfer allowance of Kshs. 197,500.00 in August 2015. However, the transfer did not take effect as the Respondent did not secure an office in Siaya County, thus the transfer was revoked. The Claimant was then redeployed to Bungoma through a letter dated 12th October 2015. 22.He stated that the Claimant was not eligible to a transfer allowance for the transfer to Bungoma as it would amount to double compensation. He also denied that the Claimant was allocated duties over and above his job description and contended that no extraneous or special duty allowance was payable. However, he admitted that the claimant was promoted to Senior Legal Officer, job group CAJ Grade 6 vide a letter dated 12th February 2018. 23.He further stated that the Claimant's claims relating to the events in 2015 and 2017 were time-barred under Section 89 of the Employment Act, 2007. 24.On cross-examination he stated that he assumed the role of Corporation Director Job grade CAJ 2 on 1st September 2012 and he is conversant with the Respondent's HR Policy Manual. He stated that Extraneous Allowance is paid to staff who are called to do extra duties. He contended that the Respondent’s Officers in Huduma Centres are not paid extraneous allowance. 25.He further stated that the Claimant did not request for transfer allowance after he was recalled back to Nairobi. He confirmed that Clause 2.16 of the HR manual provides for transfer after 3 years in a station, but clarified that it is not mandatory. He confirmed that the Claimant was transferred from Siaya after working for 2 months and from Bungoma after working for 18 months. He maintained that the transfer of the Claimant to Nyahururu was decided by the commission and he wrote the transfer letter. 26.He confirmed that the Claimant was the only legal officer deployed to Huduma Centre. He admitted that a regional office can be held by a Legal Officer. The Claimant's performance was evaluated in 2015/2016 by his immediate supervisor, but he did not have a copy of the appraisal report. 27.He admitted to have stated in paragraph 7 of his witness statement that the Claimant was invited to a hearing after he protested his transfer to Bungoma but he walked out of the meeting. He further admitted he did not have the minutes of the said hearing but contended that the claimant was issued with a letter informing him that his conduct was contrary to what is expected of a public officer. 28.He stated that the Claimant pays for his practicing certificate but his trainings have been paid for by the Respondent. However, he did not produce any documentary proof of the same. 29.In re-examination, RW1 stated that the Claimant was appraised as per page 19 of the Claimant's bundle. Submissions and the issues for determination 30.After the close of the hearing, the Claimant filed submissions dated 20th September 2024 and supplementary submissions dated 11th May 2026 while the Respondent filed submissions dated 2nd March 2026. 31.Having considered the pleadings, evidence, and submissions, it is common ground that the claimant is still employed by the Respondent as Senior Legal Officer. There is also no dispute that the Claimant has since July 2015 been transferred severally leading to strained relationship with his seniors and court cases. The parties framed and agreed on the following 8 issues for determination by the Court: -1.Whether the Claimant’s Claim with regard to transfers and/or any claim pre-dating 2020 is time – barred.2.If the answer to 1 is in the negative, whether the Claimant’s:-a)Transfers to Siaya, back to Nairobi, to Bungoma, were unfair, unlawful and unconstitutional.b)Transfer to Nairobi and to Nyahururu were unfair, unlawful and unconstitutional.3.Whether the Claimant was treated in a discriminatory, unlawful, unconstitutional and unfair manner by the Respondent.4.Whether the Claimant was entitled to transfer and baggage allowances on his transfers from Siaya to Nairobi and from Nairobi to Bungoma.5.Whether the Claimant is entitled to extraneous allowance from 01.11.2015 to 30.04.2017 during which period he served at the Respondent’s Huduma Centre desk at Bungoma.6.Whether the Claimant performed special duties meant for a Chief Legal Officer from 01.11.2015 to 30.04.2017.7.In the event issue no. 6 hereinabove is answered in the affirmative, whether the Claimant is entitled to special duty allowance from 01.11.2015 to 30.04.2017.8.Whether Respondents officers of grades 7-11 are eligible to head regional offices. Analysis a. Statute Barred Claims claims 32.The Respondent contended that the Claimant's claims numbered (iv) to (xv) relate to his transfers between 2015 and 2020 and are therefore statute-barred by dint of Section 90 of the Employment Act, 2007. For emphasis, the Respondent relied on the Court of Appeal decision in G4S Security Services (K) Limited v. Joseph Kamau & 468 others [2018] eKLR, Kenya Union of Commercial, Food and Allied Workers v. Lake Victoria South Water Works Development Agency & 2 others [2025] KEELRC 434 (KLR), and George Hiram Ndirangu v. Equity Bank Limited [2015] eKLR,where the Courts dealt with similar allegations that the claims were time barred. 33.The Claimant maintained that all his claims relate to continuing injuries in accordance with Section 90 of the Employment Act, 2007, and as such they are not time barred. He relied on George Hiram Ndirangu v. Equity Bank Limited [2015] eKLR, and G4S Security Services (K) Limited v. Joseph Kamau & 468 others [2018] eKLR, where the Court held that "continuing injury or damage" includes accrued dues such as salary underpayment or failure to pay accrued dues, and employee can sue the employer within twelve months after the termination. 34.I have considered the rival contentions and the cited authorities. The relevant law is Section 90 of the Employment Act, 2007 that has since been amended to section 89 of the Act and which provides that: -“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 35.The claims targeted by the respondent’s objection include transfer allowance, baggage allowance, extraneous allowance, and special duty allowance that accrued between 2015 and 2017 and that remain unpaid despite persistent demands by the claimant. In G4S Security Services (K) Limited v. Joseph Kamau & 468 others [2018] eKLR, the Court of Appeal held that:-“20.…Regarding a continuing injury, the proviso to section 90 of the Employment Act requires that the claim be made within 12 months next after the ceasation thereof. The learned judge did not determine when continuing injury ceased, for purposes of computing the twelve month period. In the absence of a defined period, the learned Judge erred in concluding that the claim had no limitation period. Further, upon the claimant’s dismissal, any claim based on continuing injury ought to have been filed within one year failing which it was time barred.” 36.The above case arose from termination of employment where the Court held that an employee with a continuing claim can file a suit against the employer within twelve months next after the termination. In the instant case, the Claimant has not ceased employment with the Respondent but is still working for it. However, the claims accrued between 2015 and 2017 and never continued. Therefore, they do not fit within the meaning of continuous injury or damage since breach has not recurred periodically after 2017. 37.The said claims are pleaded in paragraph 9-51 of the Claim and summarized in paragraph 48 and 51 and the Claimant acknowledges that they accrued between 2015 and 2017, and relate to transfers done between 2015 and 2017. The time taken before filing this suit was more than three years, therefore, the claims are stale and prayers vii, xii and xiv are untenable. 38.Whereas it appears untidy for parties in employment relationship to keep taking each other to court for violation of contract terms, there seems to be no otherwise considering the said limitation dragnet. It follows that where a party to a contract of employment is wronged by the other he/she must file suit to enforce his or her rights under the contract before the limitation period lapses. 39.This position must apply to both parties including employers who carry forward claims against employees for decades until the retirement date and purport to deduct the same from the employees’ terminal dues or even withhold pension. I say so because, as in this case, it would be unconscionable for the employer to plead defence of limitation against the employee’s claims today, then several years down the line, purport to recover from the same employee, claims that accrued beyond the limitation period of three years or twelve months in case of continuing injury or damage. 40.In view of the observations and findings made above, the first issue framed by the parties is determined in the negative. Accordingly all the claim with respect to transfers and/or any claim pre-dating 2020 is time-barred. (b) Unfair, Unlawful and Unconstitutional Transfers 41.The Claimant contended that he was transferred unfairly, unlawfully, and unconstitutionally on several occasions. The transfers from Nairobi to Siaya then back to Nairobi, and again from Nairobi to Bungoma. This happened between July and October 2015. I have already made a finding that the claims based on the said transfers are stale which means I have no jurisdiction to entertain the same. 42.The Claimant also challenged his transfer to Nyahururu in 2024 contending that as the Chairperson of the CAJSWA he ought to remain in the Nairobi in order to continue discharging the functions of that office. However, during the hearing of the suit, he withdrew the claim relating to his transfer to Nyahururu stating he had already reported to Nyahururu and was currently based there. Consequently, prayer ii and iii are marked as withdrawn. 43.In view of the observations and findings above, I hold that the answer to the second issue framed by the parties is in the negative. The claims based on transfers done in 2017 are time-barred while the claims based on the transfer to Nyahururu in 2024 is marked as withdrawn by the Claimant. (c) Discriminatory, unlawful and unfair treatment 44.The Claimant contended that he was discriminated against by the Respondent. In his submissions dated 20th September 2024 and supplementary submissions dated 11th May 2026, he enumerated various instances of discrimination, including: being subjected to numerous arbitrary transfers; delayed confirmation of employment despite all other 40 recruits being confirmed; arbitrary withholding of his dues; being punished for changing his sitting position despite other employees doing the same without being punished; being subjected to a skewed and discriminatory suitability interview; being denied opportunities for training and promotion but transferred 5 times; being the only legal officer posted to a Huduma Centre since the Respondent's inception in 2011; and being denied payment of extraneous allowance of Kshs. 15,000 per month for being posted to serve at Huduma Centre. 45.There is evidence that the claimant was deployed to serve at Huduma Centre in Bungoma. He was also subjected to frequent transfers between 2015 and 2017 before serving in a station for at least three years provided in the Respondent's policy. He was also not paid Kshs.15000 extraneous allowance despite a clear directive by the Principal Administrative Secretary. These actions amounted to discrimination of the claimant from other public officers stationed at the centres and other staff of the respondent. 46.Having said that, I must reiterate that all the claims that predates the year 2020 are time barred and therefore the claim for damages for discrimination is declined. Even if the claim is founded on constitutional provision, there is no explanation given why the Claimant it not sue within a reasonable time, but waited for nine years to so. (d) Reliefs 47.I have found that all the claims pre-dating 2020, and connected to the impugned transfers of the claimant between 2015 and 2017 are statute-barred, and therefore they must fail. I have further found that the claims related to the transfer of the Claimant to Nyahururu have been withdrawn and therefore I mark them as such. Declarations 48.The Claimant sought several declarations but since most them are related to claims that are time-barred, I will only consider the ones I consider to be unrelated with the stale grievances. The first one is prayer for declaration that the Chairperson of the Commission on Administrative Justice Staff Welfare Association (CAJSWA) should be based at the Association's office, which is the Respondent's headquarters in Nairobi, to enable effective discharge of the functions of the Chairperson. 49.The above prayer sounds reasonable but I would rather leave that to be decided by the parties internally. Granting the said declaration, would be re-writing the contract of service for the parties and in the process elevate the interests of the CAJSWA above those of the employer. It would also be litigating on policy matters in favours of CAJSWA which is not a party to the suit. 50.The second declaration sought is that, when an employee of the Respondent below the level of a chief officer is called upon to head a regional office, he/she is entitled to be paid special duty allowance at the rate of 15% of the employee's basic salary. This request is not far fetched considering that officers have been made to undertake responsibilities in offices they are not in charge for many years, without any corresponding benefits or promotion. 51.I appreciate that this is also a matter of policy and the Respondent has HR policy in place to guide on payment of acting allowances. Clause 3.5.7 of the respondent’s HR Policy Manual produced as exhibit by the claimant seems sufficient in the circumstances of this case. The above Clause is in consonance with Clause 48 of the HR Policies and Procedures Manual for the Public Service. 52.The above position applies with respect to the prayer for declaration that Respondent's officers of grades 7-11 are not eligible to head regional offices by dint of clause C.15(3) of the Public Service Commission Human Resource Policies and Procedures Manual for the Public Service (2016). 53.The Claimant further prayed for declaration that his action of changing his sitting position within the office was justified and did not in any way constitute misconduct on the part of the Claimant. I do not think that an employee has any discretion to determine where to sit at his employer’s premises. This is a matter of managerial prerogative which should require authorization from the supervisor or the relevant authority. The Claimant has not produced any such authorization that was granted to him by his supervisor or any other manager before relocating from Wing A to wing B of the office premises. 54.The Claimant also prayed for an order directing the Respondent to take steps to enact a transfer policy, I decline to grant this request since the Respondent already has a transfer policy in clause 2.16 of its HR manual. Refund of Kshs. 78,880 55.The Claimant prayed for a refund of Kshs. 78,880 paid to the Kenya School of Government for a Senior Management Course attended in May 2023. This claim is not time-barred as it arose in 2023 and the suit was filed in 2024. 56.The Claimant contended that the Respondent refused to pay for his training, forcing him to pay from his pocket, despite the Respondent paying for other officers. The Respondent contended that the Claimant attended the training as a self-sponsored course and that the Respondent did not commit to refund him. 57.There is evidence that the Claimant attended training at the Kenya School of Government in 2023. However, the claimant has not laid any basis for claiming the refund. He did not prove by evidence that he is entitled to be refunded the cost incurred to attend the training. 58.The decision to go for the training was personal and there is no evidence that the employer authorized him to incur the expense and seek reimbursement. Therefore, I decline to grant the prayer for refund of the said Kshs. 78,880. Conclusion 59.I have found that all the Claimant's claims predating 2020 are statute-barred and the court has no jurisdiction to entertain them or to grant the corresponding reliefs sought. The other claims related to the Claimant’s transfer to Nyahururu, were wholly withdrawn by the claimant during the hearing of his testimony. The rest of the claims are policy matters which are covered by the existing HR Policy of the respondent and that of the Public Service. 60.In the upshot, the claimant’s case fails largely because it is time-barred. The Claimant slept on his right to sue and for that reason among others highlighted above, I dismiss the whole suit. However, I will not condemn the Claimant to costs because, as evident on the record, the respondent failed him a lot of money in form of allowances for his posting to Huduma Centre at Bungoma for 18 months. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY, 2026.ONESMUS MAKAUJUDGEAppearance:Claimant present in person without counselOtieno for Respondent