https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1636

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT BUNGOMA** **MISC. APPLICATION NO. E005 OF 2024** **MAURICE WABWIRE MARANGO …………….….. APPLICANT** **VERSUS** **HON. KENNETH MAKELO LUSAKA,** **GOVERNOR,** **COUNTY GOVERNMENT OF BUNGOMA…...1ST RESPONDENT** **COUNTY GOVERNMENT OF BUNGOMA…..2ND RESPONDENT** **BUNGOMA COUNTY** **PUBLIC SERVICE BOARD………………….....3RD RESPONDENT** **AND** **CHRISPINUS BARASA ………………...1ST INTERESTED PARTY** **WILLIAM MAKHANU NASONG’O….2ND INTERESTED PARTY** **JOSEPH MAKATA ………………….....3RD INTERESTED PARTY** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. The Applicant through Robert Wamalwa Advocate filed a Chamber Summons dated 25th June 2024 seeking for the following orders – 3. ***This matter be certified urgent and it be heard on priority basis.*** 4. ***This honourable court be pleased to recognize and adopt the decision of the Public Service Commission issued on 13th September, 2023 as an order of this court.*** 5. ***That this honourable court be please to grant leave to the Applicant to enforce the said orders as judgment and decree of this honourable court.*** 6. ***That consequently the honourable court do order unconditional reinstatement of the Applicant as Chief Officer, Bungoma County Government for the period up to and until 14th November, 2023 and order for payment of all his withheld salary and benefits.*** 7. ***That the honourable court to cite the 1st respondent Hon. Kenneth Makelo Lusaka personally, Mr. Chrispinus Barasa, the County Executive Committee Member for Finance Mr. William Makhanu Nasongo, County Secretary for and on behalf of the 2nd Respondent, and Mr. Joseph Makata, County Public Service Board Secretary, on behalf of the 3rd Respondent for refusing, failing and or neglecting to implement the Public Service Commission’s decision of 13th September, 2023 and communicated to them on 19th September, 2023 and do declare that Governor Kenneth Makelo Lusaka, Mr. William Makhanu Nasongo, Mr. Chrispinus Barasa and Mr. Joseph Makata have violated Section 89(2) of the Public Service Commission Act 2017 and Articles 10, 47 and 232 of the Constitution and are therefore unfit to hold public office and liable to disciplinary action in accordance with the applicable laws including removal from office.*** 8. ***That the honourable court’s declaration in 5 above be referred to the appropriate state organs including County Assembly of Bungoma, the Senate, the Office of Ombudsman and the Ethics and Anti-Corruption Commission for implementation.*** 9. ***That the honourable court to make a finding and declare that Governor Kenneth Makelo Lusaka, Mr. William Makhanu Nasongo, Mr. Chrispinus Barasa and Mr. Joseph Makata jointly and severally have by the actions/inactions of refusing, failing and or neglecting to implement the Public Service Commission’s decision of 13th September, 2023 committed acts of unfair labour practices as against the Applicant.*** 10. ***That consequences to the finding in 7 above the honourable court be pleased to award punitive damages in favour of the Applicant as against Governor Kenneth Makelo Lusaka, Mr. William Makhanu Nasongo, Mr. Chrispinus Barasa and Mr. Joseph Makata’s jointly and severally in accordance with the and pursuant to Section 49 and 50 of the Employment Act, 2007.*** 11. ***Costs of this application be provided for.*** 12. The application is expressed to be brought pursuant to ***Section 89(1) of the Public Service Commission Act & Section 12 of the Employment and Labour Relations Court Act***. 13. The application is based on the grounds on the face of it and supported with the affidavit sworn by the Applicant on even date, with several annexures thereto. 14. Upon service of the application, the Respondents and the Interested Parties instructed Simiyu Makokha Advocate to act for them through the Office of the County Attorney. 15. On 24th October 2024 Counsel for the parties executed a consent and the same was adopted as an order of the court on 30th October 2024. The said consent was in the following terms – 16. ***That the interdiction letter dated 9th February 2023 under reference number 1997000016025/8 and dismissal letter dated 16th August 2023 under reference number CG/BGM/GVN/HRM/VOL.1 (005) be and are hereby set aside as per the direction of the Public Service Commission Decision in County Appeal No. 040 of 2023.*** 17. ***That the Applicant be paid all his salary arrears, allowances and benefits up to and including 31st October 2023 and the same be paid during the processing of November 2024 County Salaries by the pay roll manager and or the director of Human Resource Directorate.*** 18. ***That the applicant be paid gratuity for the period served up to and including 31st October 2023 as per the letter of appointment dated 14th November 2018 and the same be paid on or before 31st January 2025.*** 19. ***That each party to bear their own costs in respect of these proceedings.*** 20. Subsequently, the Respondents did not honour and settle the consent order and the Applicant filed a Notice of Motion (the application) dated 31st July 2024 (sic!) (2025) seeking for the following orders – 21. ***This matter be certified urgent and the same be heard on priority basis.*** 22. ***The firm of 1. GWEHONA ADVOCATES be granted leave to come on record for the Applicant in place of Robert Wamalwa & Company Advocates.*** 23. ***This honourable court be pleased to give an order citing the Respondents for contempt of court by their disobedience of court order in BUNGOMA ELRCMISC/E005/2024 issued on 30th October 2024.*** 24. ***This honourable court be pleased to give an order citing the pay roll manager and director human resource directorate herein for contempt of court and committing them to civil jail for a term of 6 (six) months and/or until they purge their contempt by paying all the salary arrears, allowances and benefits owing to the Applicant as ordered by this honourable court.*** 25. ***In the alternative to prayer 3 and 4 above, this honourable court be pleased to give an order citing the respondents for contempt of court and fining them accordingly for such contempt.*** 26. ***An order compelling the Respondents immediate compliance with the court order dated 30th October 2024.*** 27. ***Any further orders that this honourable court may deem fit to grant.*** 28. ***Costs of this application be provided for.*** 29. Upon service of the application the 1st & 2nd Respondents alongside the 1st & 2nd Interested Parties, through the Office of the County Attorney, filed a replying affidavit sworn by the 2nd Interested Party on 29th December 2025 with several annexures thereto. 30. The 3rd Interested Party through Wattangah & Co. Advocates filed a replying affidavit sworn by himself on 4th November 2025 with several annexures thereto. 31. In response to the above the Applicant filed a further affidavit sworn by himself on 26th January 2026. 32. By consent, the application was canvassed by way of written submissions. Counsel for the Applicant filed undated written submissions received in court on 27th January 2026. Counsel for the 1st & 2nd Respondents alongside the 1st and 2nd Interested Parties filed submissions dated 18th February 2026; Counsel for the 3rd Respondent and the 3rd Interested Party opted not to file written submissions. **II. THE EVIDENCE** 1. The gist of the application is that the Respondents have failed, refused, and or neglected to comply and obey the consent dated 24th October 2024 and adopted by the court as a court order on 30th October 2024 and as such the Applicant is asking the court to cite the Respondents for willful contempt of the said order. 2. It is deposed in the supporting affidavit that in spite of the fact that the Respondents are aware of the said consent order they have willfully ignored to implement the same without any just or reasonable cause. 3. For the foregoing, the court is urged to find the Respondents in contempt of the impugned orders and condemn and punish them as appropriate by way of heavy fines or committal to civil jail. 4. In their response to the application through the replying affidavit of William Makhanu Nasongo, the 1st & 2nd Respondents alongside the 1st & 2nd Interested Parties stated that the application is fatally defective as the orders sought may only be made in an application for judicial review. 5. It is deposed that the 1st Respondent is neither an authorized officer nor an accounting officer for payments of salaries, wages, and such other emoluments, and that the 2nd & 3rd Respondents are not natural persons capable of being held in contempt. It is further deposed that no orders are sought against the Interested Parties and, in any event, they are not capable of executing the orders complained of. It is further deposed that the Payroll Manager and the Director of Human Resources are neither authorized nor accounting officers capable of enforcing the impugned orders. 6. It is further deposed that the Applicant is seeking for contempt orders against persons who are neither parties in the application nor served with the impugned orders. 7. It is further deposed that through the salary remittance for November 2024 the Applicant was paid salary for the period up to 30th October 2024 as per the pay-slip attached. It is deposed that thereafter the Applicant cleared with the employer. It is deposed that the Applicant could however not get his full pension/gratuity from the County Pension Scheme for his failure and others to remit the 31% County contribution from 2018 when he was one of the authorized accounting officers. 8. It is deposed that the payment of the pending gratuity to the Applicant and others is awaiting approval by the Controller of Budget. 9. It is therefore deposed that the Respondents have to a large extent complied with the impugned consent order and the only remaining issue of gratuity is being addressed except for factors beyond the reach and control of the Respondents and the Interested Parties. 10. In the replying affidavit of Joseph Makata, the 3rd Interested Party, it is deposed that the Applicant is seeking to punish persons who are neither parties in the application nor served with the impugned orders. It is deposed that salary arrears were paid in November 2024 and the computation of the salary arrears was done and forwarded to pension scheme for settlement. 11. In reply to the above dispositions by the Respondents and the Interested Parties, the Applicant filed a further affidavit deposing that his salary arrears were actually paid as stated above and he is no longer claiming the same as that issue was settled albeit after a prolonged delay. However, he maintains that his gratuity has not been paid notwithstanding the clear terms of the consent order. It is deposed that the said order has neither been reviewed nor amended and hence the Respondents are in clear breach of the same. 12. The Applicant deposed that he did not in any way contribute to non-remittance of the contributory gratuity scheme by the County Government of Bungoma and this is allegedly confirmed by the fact that no action has been taken against him in that regard. 13. It is further deposed that payment and settlement of his gratuity was not subject to any budgetary approvals or allocations and no such conditions were provided for in the consent court order that was freely and voluntarily executed by the parties on 24th October 2024. It is deposed that the computed gratuity stands unpaid at Kshs1,322,327.48 and the Applicant accuses the named persons for their failure to comply with the consent order and settlement thereof. 14. The Applicant calls upon the court to cite the Respondents for contempt and punish them accordingly to stamp its authority and enforce compliance with the orders. **III. SUBMISSIONS** 1. Counsel for the Applicant submitted on the following identified issues for determination – 2. *Whether the consent order of 30th October 2024 is binding and enforceable;* 3. *Whether the Respondents have fully complied with the consent order;* 4. *Whether budgetary and administrative constraints excuse non-compliance;* 5. *Whether the Respondent’s conduct amounts to contempt of court;* 6. *What remedies are available to this Honourable court.* 7. On the first issue, it is submitted that a consent order once adopted by the court becomes an order of the court and a binding contract between the parties that may only be set aside on the same terms and conditions as a contract, such as deceit, fraud, material misrepresentation, mistake, as was held in ***Flora Wasike V Destimo Wamboko (1988) KLR***. 8. It is further submitted that the terms of the impugned consent order were clear, unambiguous, and acceptable to all the parties and the same remain in force. It is submitted that the gratuity due to the Applicant was payable before 31st January 2025. It is emphasized that the same has not been paid to date and the Respondents and the Interested Parties have admitted so in their replying affidavits. 9. Citing ***Teachers Service Commission V Kenya National Union of Teachers (2013) eKLR***, counsel emphatically stated that the court should not accept the partial compliance with the orders as admitted by the adverse parties as that shall undermine the judicial authority of the court in enforcing compliance with its orders. 10. It is further submitted that budgetary limitations are not a barrier to settlement of a lawful order or decree. Counsel cited ***Republic V Attorney General Ex-parte James Alfred Koroso (2013) eKLR*** arguing that allowing public bodies to hide behind lack of budgetary allocations for failing to settle their financial obligations shall render such court orders meaningless. 11. On the first and second issues, therefore, counsel submitted that the consent order as adopted by the court is binding to all the parties and that is not denied by the Respondents and the Interested Parties. It is further submitted that on their own admission the Respondents have only partially complied with the impugned court order. It is further submitted that from the replying affidavits the Respondents and the Interested Parties have confirmed that they always had knowledge of the order and had the ability of obeying and enforcing the same. 12. On the appropriate orders for the court to issue, it is submitted that the court has no business enquiring how or why county budgets were rejected or why the Controller of Budget has not approved the payments. Counsel cited ***Republic V Principal Secretary, Ministry of Defence Ex-parte George Kariuki Waithaka (2019) eKLR*** to the effect that monetary court orders and decrees should be integrated into the budget for settlement rather than being treated as a contingency or a secondary burden. It is further submitted that the judgment-debtor has had numerous opportunities to settle the matter but has deliberately failed and or refused to do so including – supplementary budgets, engaging the Controller of Budget if there was such a need, and even petitioning the court for enlargement of the time that was allocated for the settlement of the order – but the Respondents took neither of those options. 13. It is submitted that the Respondents are the accounting officers are assigned under ***Section 148(1) of the Public Finance Management Act*** and must be held to account. Counsel cited ***Republic V Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex-parte Fredrick Manoah Egunza (2012) eKLR*** in support of the argument that public officers must as well be held to account for failure to comply with court orders directed at them or the institutions that they manage. 14. Counsel emphasized that all the ingredients for contempt have been established against the Respondents. It is pointed out that the Respondents have confirmed knowledge of the impugned orders and they have demonstrated lack of adequate effort or willingness to obey and comply with the same. The court is thus called upon to use its coercive powers to force compliance and obedience of the said orders. Citing ***Gatharia K. Mutitika V Baharini Farm Ltd (1985) KLR 229*** it is submitted that contempt proceedings are quasi-criminal wherein the burden of proof is beyond balance of probabilities but lower than beyond reasonable doubts. 15. It is further submitted that since the Respondents admitted knowledge of the impugned order in their replying affidavits, the issue of personal service does not arise. Counsel cited ***Shimmers Plaza Limited V National Bank of Kenya Limited (2015) eKLR*** in support of that legal position. It is further submitted that the lack of effort and the deliberate failure by the Respondents to comply with the order amounts to willful contempt and the court is urged to punish that contemptuous conduct. 16. It is further submitted that the contemnors have not demonstrated any efforts made in securing the necessary budget for settling the claim either by way of correspondences with the Controller of Budget or any other efforts or at all. It is submitted that the situation is compounded by the fact that no application has been filed in court asking for review, variation, amendment, or stay of the consent order or part thereof. It is further submitted that the Respondents have not demonstrated any impossibility or impracticability for them complying with the court order and this demonstrates the willful disobedience of the same. 17. The County Attorney appearing for the 1 & 2nd Respondents and the 1st & 2nd Interested Parties submitted that they are protected against personal liability under ***Section 133(1) of the County Governments Act***. It is submitted that the cited persons are agents of the County Government of Bungoma and should not be held liable for the debt payable by the employer. It is submitted that in any event there is no specific order directing the cited persons to settle the debt. 18. The court is urged to dismiss the application with costs. **IV. ISSUES FOR DETERMINATION** 1. The factual background leading to this application has been set out by the parties and their respective counsel as per the summary in the preceding part of this ruling. The gist of the application is that the Applicant was in the employ of the County Government of Bungoma, the 2nd Respondent, as a chief officer from 12th November 2018 on a contract of five years. However, he was interdicted on 3rd February 2023 through a letter issued by the 1st Respondent. The Applicant challenged the interdiction by way of an appeal to the Public Service Commission (the Commission). 2. The appeal to the Commission by the Applicant was successful as per the decision issued on 13th September 2023 that was communicated to the Secretary of the 3rd Respondent on 19th September 2023. However, the decision of the Commission was not obeyed and or implemented leading to the Applicant filing these proceedings in court for enforcement of the same by the court. This ultimately resulted in the consent order cited again and again above that was in the terms set out in the introductory part of this ruling. 3. The issue for determination therefore is ***whether the Applicant has placed the court adequate evidence for the court to issue the orders prayed for***. 4. It is the case for the Applicant that while the salary arrears due to him were settled, the Respondents have failed, refused, and or neglected to settle the gratuity that is now overdue. It is on that basis that the Applicant is seeking that the Respondents be held to be in contempt of the court order and be cited for contempt and punished by way of fine or committal to jail till they purge the contempt. 5. It is settled law that the ingredients for a successful application for contempt are that there has to be a lawful court order, that the contemnors must be proved to have knowledge of the said court order, and, there has to be proved willful or intentional disobedience of the same. 6. There is no contest that there is a lawful court issued by the court following the consent dated 24th October 2024 that was adopted as an order of the court on 30th October 2024. This order was reproduced at the introductory part of this ruling for ease of reference. Clause 2 thereof is clear that payment was to be executed by the Pay Roll Manager and or the Director of Human Resource Director. Of course, the court is aware that the employer, the entity ultimately liable to settle the claim, is the County Government of Bungoma, the 2nd Respondent. 7. In the above context, it is clear that the Applicant had the option of either obtaining an order directing the said officers to act on the matter and settle the claim as against the 2nd Respondent or proceed to execution. The fact of the matter is that the claim on salary arrears was settled but that of gratuity remains unsettled to this day. But then, to whom was the court order directed at to make the payments? Clause 2 of the order is very clear on this issue. 8. In my considered view, after the payment for gratuity was not made the Applicant ought to have served the order personally upon the officers occupying the two specific offices named in the order, the Pay Roll Manager and the Director of the Human Resource, and only then would they held to be in disobedience of the said order. The two officers are neither named in the instant application nor are they parties to the same. 9. In the circumstances, it is the finding and holding of the court that the application herein is directed and aimed at the wrong persons as the impugned order was clear in clause 2 as to person(s) who was to activate and execute the payment process. Further, the court finds that the officers occupying the said two offices have neither been named nor joined in these proceedings. There is also no evidence that the two officers were served with the application. 10. While the 2nd Respondent is actually the judgment-debtor and ultimately liable to settle the amounts due, it is a corporate body that can only act through natural persons. And the court order is specific on the persons who were directed to act. 11. The court also notes that no decree was drawn and issued after the order by the court. There ought to be a clear decree that is to be satisfied. There is also no explanation as to why the Applicant has not taken out execution proceedings as opposed to filing contempt proceedings which should be a last resort. 12. It is the finding and holding of the court that while there is a valid court order on record, there is no evidence that the occupants of the two offices named in clause 2 of the order were served and or made aware of the said court order. It is clearly evident that the Applicant has aimed his cannons at the wrong entities. 13. Likewise, the two officers who were supposed to execute or process the payment cannot be held to be in willful disobedience of the impugned court order for lack of service and or their knowledge of the said order. 14. Consequently, the application shall fail for the reasons explained above. Of course, the Applicant is free to take out execution proceedings and or file any other application(s) as he may deem fit. **VI. ORDERS** 1. ***The Notice of Motion by the Applicant dated 31st July 2025 is hereby disallowed and dismissed.*** 2. ***There is no order on costs.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.** **....................................** **DAVID NDERITU** **JUDGE**