https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1756

Kosgei v Governor, County Government of Uasin Gishu & 2 others (Cause E062 of 2025) [2026] KEELRC 1756 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1756 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Cause E062 of 2025 MA Onyango, J June 25, 2026 Between Elija Kipkemoi Kosgei Claimant and Governor, County Government of Uasin Gishu 1st Respondent The County Public Service Board, Uasin Gishu 2nd Respondent County Government Of Uasin Gishu 3rd Respondent Judgment 1.The Statement of Claim herein is filed by the Claimant who describes himself as an adult male of sound mind residing and working for gain in Uasin Gishu County. 2.He has filed the suit against the Governor of Uasin Gishu County as 1st Respondent, whom he refers to as the appointing authority of County Executive Committee Members. 3.The 2nd Respondent is the County Public Service Board established under section 57 of the County Governments Act, mandated to handle human resource matters in the county. 4.The 3rd Respondent is the devolved unit of government established under Article 176 of the Constitution of Kenya, with capacity to sue and be sued. 5.It is the Claimant’s case that at all material times he was appointed by the 1st Respondent to serve as a County Executive Committee Member (CECM) pursuant to Article 179 of the Constitution and section 35 of the County Governments Act following a transparent and competitive process. That he was offered a fixed term contract dated 2nd November, 2022 with the term of office intended to run concurrently with the tenure of the sitting Governor. 6.It is the Claimant’s averment that he assumed office and discharged his functions in accordance with the Constitution, the County Governments Act and directives of the County Government. That he was never subjected to any disciplinary proceedings or issued with any performance related reprimand. That he consistently met the expectations of his office. 7.The Claimant avers that in May, 2025 the 1st Respondent’s Personal Assistant informed him that the 1st Respondent wanted to see him at Blue Berry Hotel Eldoret. That he proceeded to the Hotel where he met the 1st Respondent. That at the meeting the 1st Respondent informed him that his services were no longer required and that he should resign in order to be given another job. The Claimant sought time to think about the issue. 8.The Claimant avers that subsequently he was issued with a letter dated 28th July, 2025 by the 2nd Respondent in which it was communicated that the Claimant had exited from service with effect from 30th June, 2025. 9.The Claimant avers that as a consequence he has suffered financial loss including loss of salary, allowances, gratuity and other benefits. That he has further suffered reputational harm, emotional distress and damage to career prospects. He further avers that he remains unable to meet his financial obligations including loans advanced by Stima SACCO Society Ltd and other creditors. 10.The Claimant avers that the actions of the Respondents amount to breach of his fixed term contract as the contract can only be terminated for valid reason and upon due process which safeguards were wholly ignored. 11.In his Statement of Claim dated 15th October, 2025, the Claimant seeks the following reliefs:i.A declaration that the termination of the Claimant's employment was unlawful, unfair, and in breach of contract.ii.An order annulling and setting aside the letter dated 28th July 2025 purporting to terminate the Claimant's employment.iii.An order of reinstatement to the position of County Executive Committee Member under his fixed-term contract, or in the alternative, payment of all salaries, allowances, and benefits he would have earned until expiry of the contract. 12.The Respondents did not file any response to the Statement of Claim even after being given ample opportunity severally to do so. 13.The case was fixed for hearing on 13th April, 2026 in the presence of Ms. Keter for the Respondents and Ms. Chepkoech for the Claimant. When the case was called out on 13th April, 2026 for time allocation at 9.00 am Ms. Keter was present. She however never showed up at the time of hearing. The case was therefore heard in the absence of the Respondent. 14.The Claimant testified as CW1 adopted his witness statement and documents, all dated 15th October, 2025, as his evidence in chief. He reiterated the averments in the witness statement. 15.The Claimant testified that since he was removed from office he had not received any communication. That people thought he was removed from office because he had done something very very bad. That he was hiding from society and had to go to reside in Nairobi. 16.The Claimant prayed for reliefs as sought in his Statement of Claim. 17.The Claimant filed submissions dated 27th April, 2026. The Respondents did not file any even though the court granted them leave to do so. 18.The Claimant identified the following issues for determination:a.Whether the termination of the Claimant’s employment was lawful and procedurally fair;b.Whether the Claimant is entitled to the reliefs sought in the Statement of Claim;c.Who should bear the costs of the suit. 19.Relying on the decisions in Judicial Service Commission v Gladys Boss Shollei [2014] eKLR, Communications Authority of Kenya & 5 others v Royal Media Services [2014] eKLR; and Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, the Claimant submitted that removal of a CECM was an administrative act that attracts full protection of Article 47(1) of the Constitution, that the Respondents acted as the accuser, the Judge and the executioner and did not observe the rule of natural justice, and that the Claimant had legitimate expectation to work to the end of his contract. That the failure of the Respondents to adhere to the Constitution, Employment Act and County Governments Act renders the termination of the Claimant’s employment null and void. 20.On the second issue the Claimant submitted that he is entitled to the remedies provided for in section 49 of the Employment Act including-i.Wages that an employee would have earned had he been given notice.ii.Proportion of wages due as between date of notice and dismissaliii.Maximum 12 months compensationiv.Reinstatementv.Re-engagement. 21.He relied on the decisions in National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza Civil Appeal No. 178 of 2014. 22.It is submitted that-i.The Claimant was removed summarily without any notice period.ii.The contract provided for gratuity upon completion of service. Since the termination was unlawful, the Claimant cannot be denied the pro-rata gratuity for the period served.iii.The Claimant deposes that he did not utilize his annual leave days due to the exigencies of service in the County Executive.iv.House allowances and other benefits wrongly withheld during the period of service. 23.The Claimant submitted that he is entitled to costs in accordance with the provisions of section 27 of the Civil Procedure Act and urged the court to award the same. Analysis and determination 24.Having considered the pleadings, evidence adduced and submissions on record, the issues for determination are whether the Claimant was unfairly terminated and if he is entitled to the remedies sought. 25.The Claimant produced his letter of appointment dated 2nd November, 2022 in which it is stated that he was engaged as County Executive Committee Member, Public Service Management, Administration and Devolved Units. The employment commenced on 3rd July, 2022 up to the end of the current Governor’s tenure. 26.Paragraph 8 of the contract provides for removal from office as follows:a.In accordance with Section 31(a) of the County Governments (Amendments) Act, 2020.b.Incompetence.c.Abuse of office.d.Gross misconduct.e.Failure, without reasonable excuse, or written authority of the Governor, to attend three consecutive meetings of the county executive committeef.Physical or mental incapacity rendering the executive committee member incapable of performing the duties of that office.g.Gross violation of the Constitution or any other law. 27.Paragraph 9 of the contract further provides for termination of contract as follows:Termination of employment Contract with just cause, can be done by giving One (1) months' notice of such intention, in writing, to His Excellency the Governor or paying the government one (1) month's basic salary in lieu of notice. This condition does not apply in case of summary dismissal, desertion, or fraud. 28.The contract is signed by the 1st Respondent. 29.The Claimant has further attached the Nomination letter from the 1st Respondent to the Speaker, Uasin Gishu County Assembly, nominating Janet Kurgat and Robert Rotich Kemei as County Executive Committee Member for Public Service management, Administration and Devolved Units and County Executive Committee Member for Youth Affairs, Sports ICT and Innovation, respectively. 30.The Claimant’s position of County Executive Committee Member, Public Service Management, Administration and Devolved Units was effectively filled by Jane Kurgat. 31.There is no defence on record. The averments of the Claimant have not been controverted by the Respondents. 32.The Claimant’s contract provided for removal of office as provided in section 31 of the County Governments Act. the Claimant was not taken through that process. 33.The Claimant’s contract further provides for termination with just cause upon giving one months’ notice. The Clamant did not receive the notice and nor was he subjected to the process set out in section 31 of the County Governments Act. the section provides:31.Powers of the governorThe governor—(a)may dismiss a county executive committee member;(b)shall dismiss a county executive committee member, if required to do so by a resolution of the county assembly as provided under section 40; (ba) may re-assign a county executive committee member;(c)may appoint an accounting officer for each department, entity or decentralized unit of the county government; and(d)shall have such powers as may be necessary for the execution of the duties of the office of governor. 34.From the foregoing I find that the Claimant’s employment was terminated without compliance with his contract and section 31 of the County Governments Act and was therefore unfair. Remedies 35.The Claimant prayed for several remedies which I will now consider. 36.He prayed for a declaration that the termination of his employment was unlawful, unfair and in breach of contract. I declare accordingly. 37.The Claimant further prayed for an order annulling and setting aside the letter dated 28th July, 2025 purporting to terminate the Claimant’s employment. The termination having taken effect, this prayer is not capable of being granted and is declined. 38.The Claimant further prayed for an order of reinstatement to the position of County Executive Committee Member under his fixed-term contract or in the alternative, payment of all salaries, allowances and benefits he would have earned until expiry of his contract. The Employment Act does not provide for the same and nor did the Claimant’s contract. The prayer for reinstatement is also not automatic. The Claimant has not given compelling reasons for reinstatement. Section 49(4)(c) and (d) provide that among the reasons the court should consider when determining employment remedies are (c) the practicability of recommending reinstatement or re-engagement; and (d) the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances. The Claimant has not demonstrated any exceptional circumstances to justify reinstatement. Furthermore, it was the Claimant’s evidence that his position has already been filled by another person. 39.The Claimant further prayed for one month’s salary in lieu of notice. Having not been given notice and having found the termination unlawful and unfair, the Claimant is awarded Kshs. 413,079 being one month’s gross salary in lieu of notice 40.The Claimant prayed for salary for the unexpired term of his contract. As already stated above, this is not provided for in law or in his contract. 41.The Claimant further prayed for Gratuity. His contract does not state that he is entitled to the same. The Claimant did not adduce any other evidence to prove that his terms of engagement provided for payment of gratuity. The claim accordingly fails for want of proof. 42.The Claimant further prayed for house allowance arrears and unpaid benefits of Kshs. 200,000. No particulars were given for the same nor evidence adduced to justify the amount claimed. The claim fails for having not been proved. 43.The Claimant further prayed for Payment of 21 days leave of Kshs. 858,330. Payment in lieu of leave is based on basic salary. At a basic salary of Kshs. 247,847, the Claimant’s 21 days leave is calculated thus: (247,847/26x21) = Kshs. 200,184 which I award him. 44.The Claimant further prayed for service pay. Section 35(5) as read with 35(6) of the Employment Act provide:(5)An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.(6)This section shall not apply where an employee is a member of—a.a registered pension or provident fund scheme under the Retirement Benefits Act;b.a gratuity or service pay scheme established under a collective agreement;c.any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; andd.the National Social Security Fund. 45.Having been a member of NSSF, the Claimant is not entitled to service pay. 46.The Claimant further prayed for statutory deductions wrongly withheld in the sum of Kshs. 1,226,232. No particulars or breakdown was given in respect thereof. In any event there is legislation for recovery of statutory deductions by the statutory bodies charged with the collection of the same which the Claimant should approach for recovery. This prayer is accordingly declined. 47.The Claimant further prayed for compensation for unfair termination. Having found that the termination was unlawful and unfair, he is entitled to compensation as provided in section 49(1) of the Employment Act. It my view that 4 months gross salary is reasonable compensation taking into account all the circumstances of his case as well as the relevant factors under section 49(4) of the Act. I accordingly award him Kshs. 1,652,316 being 4 months gross salary as compensation. 48.The Claimant further sought general damages. No evidence was adduced on any injury for which general damages are payable. This prayer is declined for want of proof. 49.The Respondents shall pay the Claimant’s costs. 50.Interests shall accrue on the award at court rates from date of judgment. DATED, DELIVERED AND SIGNED ON THIS 25TH DAY OF JUNE 2026.M. ONYANGOJUDGE