https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1487

Maingi v Governor, Machakos County & another (Employment and Labour Relations Petition E007 of 2026) [2026] KEELRC 1487 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1487 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Petition E007 of 2026 HS Wasilwa, J May 29, 2026 Between Maureen Mwende Maingi Petitioner and The Governor, Machakos County 1st Respondent The Secretary/Chief Executive Officer, Machakos County Public Service Board 2nd Respondent Ruling 1.The Petitioner/ Applicant filed a Notice of Motion dated 4th March 2026 seeking orders That : -A.SpentB.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.C.That pending the hearing and determination of this Petition, the Petitioner be reinstated back to her position as a County Chief Officer and her salary and employment contract be reinstated.D.That each party bears the costs for this Application. Petitioner/Applicant’s Case 2.The Applicant avers That she was appointed by the 1st Respondent as a County Chief Officer on 9th January 2023 and That her contract was subsequently renewed on 3rd July 2025 to enable her continue serving in the same capacity. 3.The Applicant avers That on 16th April 2024, she was issued with a Notice to Show Cause requiring her, inter alia, to proceed on suspension until further notice. Thereafter, she recalled back to work without any disciplinary hearing proceedings being undertaken. 4.She further contends That on 9th December 2025, the Respondents issued her with a suspension letter to pave way for investigations for a period of sixty (60) days. However, before the lapse of the said suspension period, the 2nd Respondent unceremoniously terminated her employment contract on 14th January 2026 without subjecting her to any disciplinary process, hearing or furnishing her with valid reasons for the termination as required under the law. 5.The Applicant states That the Respondents’ actions infringed on her constitutional rights and freedoms, particularly the right to fair labour practices under Article 41 of the Constitution by terminating her employment without following due procedure; the right to fair administrative action under Article 47 by failing to provide valid reasons for the termination; and the right to a fair hearing under Article 50 by denying her an opportunity to defend herself through a disciplinary hearing. 6.She avers That the actions of the 2nd Respondent have rendered her unemployed and deprived her of a source of income to support herself, her family and dependants, thereby placing her in an undignified financial and emotional position. 7.The Applicant further asserts That unless she is reinstated back to work and her employment contract restored pending the hearing and determination of the Petition, she stands to suffer injustice. Respondent’s Submissions 8.In opposition to the application, the Respondents filed an undated replying affidavit, sworn by Dr. Muya Ndambuki. 9.It is the Respondents’ case That the termination of the Petitioner’s employment was neither unlawful nor unfair and did not violate the Constitution or any applicable law. Thus, the termination was lawful, procedurally fair and substantively justified. 10.The Respondents state That the Petitioner was duly issued with a Notice to Show Cause dated 16th April 2024 under reference GMC/CS/SM/CON/VOL.XX/126 requiring her to respond to allegations of unsatisfactory performance, including failure to attend critical planning meetings while serving as Chief Officer in the Department of Education. 11.They aver That the Petitioner responded to the said notice and was accorded an opportunity to be heard, following which the Respondents exercised administrative discretion and afforded her a further opportunity to improve by redeploying her to the County Department of Housing and Urban Development. 12.The Respondents further assert That despite the redeployment and opportunity accorded to her, the Petitioner’s performance remained unsatisfactory and adversely affected service delivery and the efficient discharge of public functions. 13.They state That owing to the continued underperformance and abdication of duties, the Petitioner was lawfully suspended vide a letter dated 9th December 2025 under reference GMC/2/CS/SM/VOL.XX11/47 to facilitate investigations. 14.The Respondents contend That thereafter, the Petitioner’s services were lawfully terminated vide letter reference MCG/13/CPSB/DSC/VOL.II/226 dated 14th January 2026 and That she was granted one-month salary in lieu of notice in accordance with the terms of her contract subject to full clearance and handover of government property in her possession. 15.The Respondents deny That the Petitioner was terminated without due process and assert That she was subjected to administrative and disciplinary procedures consistent with fair labour practices and constitutional safeguards. 16.They further deny any violation of Articles 41, 47 and 50 of the Constitution and state That the Petitioner was afforded an opportunity to respond to the allegations against her before the impugned decision was made following due administrative consideration. 17.The Respondents aver That the actions taken against the Petitioner were undertaken in good faith and in the public interest with a view to ensuring accountability, efficiency and prudent use of public resources within the County Government. 18.The Respondents contend That reinstatement is an exceptional remedy which is not available in circumstances where the employment relationship has irretrievably broken down due to sustained poor performance. They therefore oppose the prayer for reinstatement sought in the Application. 19.The Respondents also state That the Petitioner’s claim for gratuity at 31% of basic pay is not payable since the same would only accrue upon successful completion of the contract, which was not achieved due to the lawful termination of employment. 20.They further oppose the claim for general damages equivalent to twelve months’ salary on grounds That the termination was lawful, fair and procedurally compliant and That no basis exists for such an award. 21.The Respondents aver That they are willing to pay the Petitioner one-month salary in lieu of notice subject to her handing over all government property in her possession and completing the prescribed clearance process. They further state That they are willing to issue the Petitioner with a certificate of service upon completion of the clearance and handover process. 22.The Respondents finally contend That the Petitioner has not established a prima facie case warranting the grant of conservatory orders or reinstatement and has failed to demonstrate irreparable harm incapable of compensation by way of damages. They describe the Application as frivolous, vexatious and an abuse of the Court process intended to delay lawful administrative action and urge the Court to dismiss the same with costs. Applicant’s Submissions 23.On whether a conservatory order should be issued staying the termination of the Petitioner’s employment contract, the Applicant submitted That she relies on the constitutional rights provided under Article 41(1) on fair labour practices, Article 47 on fair administrative action and Article 50 on fair hearing. She further invoked the provisions of the Employment Act, 2007 which prohibit unfair and unlawful termination from employment. 24.The Applicant submitted That the termination of her employment contract was procedurally unfair. In support of this position, she relied on the Court of Appeal decision Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, where the Court laid down the ingredients of procedural fairness in termination of employment and held That : “ 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 employee.” 25.It is the Applicant’s submissions That vide a suspension letter dated 9th December 2025, she was suspended from duty for sixty (60) days to pave way for investigations into allegations of abdication of duty as a Chief Officer which had allegedly occasioned underwhelming performance in her department. She however argued That before the lapse of the said suspension period, the Respondents proceeded to terminate her employment through a termination letter dated 14th January 2026. 26.The Applicant further submitted That no reasons for termination were furnished to her; That the outcome of the purported investigations was never availed, if at all such investigations were undertaken; and further That no disciplinary hearing was convened before a Public Service Board Disciplinary Committee prior to the termination of her employment. 27.She therefore submitted That the Respondents failed to follow the due process prescribed under the Constitution and employment law before terminating her contract of employment and urged the Court to issue conservatory orders staying the termination pending the hearing and determination of the Petition. 28.On whether she ought to be reinstated to the position of County Chief Officer together with salary and attendant benefits, the Applicant relied on Section 45(6)(c) of the County Governments Act which provides That the office of a County Chief Officer shall become vacant where the officer is removed from office in accordance with the terms of service or any other written law applicable to the officer. 29.The Applicant submitted That having demonstrated through evidence, statutory provisions and judicial precedent That the termination of her employment contract was unlawful and procedurally unfair, it was only just and fair That she be reinstated to the same office or deployed in a similar capacity without loss of remuneration, benefits and privileges attached to the office. 30.In buttressing her submissions, the Applicant relied on the decision in Kulei v Governor, Kajiado County, Hon Joseph ole Lenku & another [2024] KEELRC 13563 (KLR), where Ongaya J. declared the impugned termination unlawful and unconstitutional, issued an order of certiorari quashing the termination letter and further ordered the immediate reinstatement of the petitioner therein. 31.On costs, the Applicant submitted That it was the Respondents’ actions which necessitated the filing of the present Application and urged the Court to award her the costs thereof. Respondent’s Submissions 32.The Respondents submitted on three issues: whether the Petitioner has established a prima facie case warranting the grant of conservatory orders pending the hearing and determination of the Petition; whether the Petitioner has met the legal threshold for grant of an order of reinstatement pending the hearing and determination of the Petition; and who should bear the costs of the Application. 33.On the first issue, the Respondents submitted That the principles governing the grant of conservatory orders are now settled in law. They submitted That an applicant seeking such orders must demonstrate a prima facie case with a likelihood of success and further establish That unless the orders sought are granted, he stands to suffer prejudice incapable of compensation by way of damages. 34.In advancing this position, the Respondents relied on the decision in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, where 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 Court observed That : “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………… It is in my view not enough to merely establish a prima facie case and show That it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis.” 35.It is the Respondents’ submissions That the Petitioner had failed to establish any prima facie violation of the Constitution as alleged. They argued That contrary to the Petitioner’s assertions, the material placed before Court through the Replying Affidavit demonstrates That the Petitioner was subjected to an administrative process prior to the termination of her employment. 36.The Respondents submitted That the Petitioner was issued with a Notice to Show Cause, informed of the concerns regarding her performance and afforded an opportunity to respond before the impugned decision was made. They denied the allegations That the Petitioner was condemned unheard or denied procedural safeguards. 37.The Respondents further submitted That the Petitioner merely alleged constitutional violations without placing before Court sufficient material to demonstrate infringement of the constitutional rights pleaded. They argued That the dispute before Court was essentially an employment dispute arising from termination of employment and not a constitutional controversy warranting intervention through conservatory relief. 38.They submitted That the Employment Act provides adequate remedies for unfair termination, including compensation and damages where appropriate, and therefore the Petitioner had failed to establish a prima facie case warranting the extraordinary reliefs sought. 39.The Respondents also submitted That the office held by the Petitioner is a senior public office within the County Government involving public administration, accountability and delivery of public services. They maintained That granting conservatory orders reinstating the Petitioner at an interlocutory stage would unduly interfere with the Respondents’ constitutional and administrative mandate before the substantive dispute is fully heard and determined. 40.The Respondents therefore urged the Court to find That the Petitioner had failed to satisfy the threshold for grant of conservatory orders and prayed That the same be declined. 41.On the second issue, the Respondents submitted That reinstatement is a final and substantive remedy under Section 49(3)(a) of the Employment Act and not an interim or interlocutory relief to be granted at a preliminary stage of proceedings. 42.They argued That reinstatement pending hearing and determination of a dispute is an exceptional measure which effectively determines the ultimate outcome of the dispute in advance and runs contrary to the settled principle That Courts ought not to prejudge substantive issues at an interlocutory stage. 43.The Respondents relied on the decision in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR where the Court of Appeal emphasized That reinstatement is not an automatic remedy and may only issue in appropriate circumstances after full evaluation of evidence and consideration of the factors set out under Section 49 of the Employment Act. 44.The Respondents submitted That the Petitioner is seeking reinstatement at an interlocutory stage before the Court had the benefit of full evidence, cross-examination and evaluation of the Respondents’ justification for termination. They reasoned That granting such an order at this stage would amount to a final determination of the dispute without trial and would prejudice the Respondents while undermining the principles of due process and fair hearing. 45.They further submitted That the employment relationship between the parties has irretrievably broken down owing to performance-related concerns and administrative considerations which necessitated termination of the Petitioner’s services. 46.The Respondents argued That the office held by the Petitioner is a senior public office within the County Government requiring trust, confidence and effective working relationships and That once such confidence is compromised, reinstatement becomes impracticable and contrary to public interest. 47.They submitted That the balance of convenience and public interest did not favour reinstatement pending hearing as doing so would compel the Respondents to continue working with an officer whose continued engagement was the subject of legitimate administrative concerns. 48.The Respondents also submitted That the Petitioner has an adequate remedy in damages should the Court ultimately find That the termination was unfair or unlawful and therefore she had failed to meet the threshold for grant of reinstatement at an interlocutory stage. 49.On costs, the Respondents submitted That the general principle is That costs follow the event unless good reason is shown otherwise. They contended That the Petitioner’s Application was devoid of merit and merely intended to prematurely obtain final orders at an interlocutory stage without satisfying the established legal threshold for conservatory relief and reinstatement. 50.It is the Respondents’ submissions That they had been unnecessarily dragged into the proceedings and put to expense in opposing an Application which is fundamentally misconceived both in law and in fact and urged the Court to dismiss the same with costs to the Respondents. 51.I have considered the averments and submissions of the parties herein. The petitioner/applicant has sought orders directing the respondent to reinstate her to service pending hearing and determination of this petition. The order sought would however determine the entire petition at this preliminary stage which this court can only consider in the main petition. 52.I therefore find That the application is not merited at this stage and I proceed to dismiss it accordingly and direct the parties to proceed with the main petition. The costs shall be in the petition. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 29TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE