https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1488

Muthui v Muchiri & 3 others (Petition E007 of 2021) [2026] KEELRC 1488 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1488 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E007 of 2021 J Rika, J May 29, 2026 Between Elizabeth Wanjiku Muthui Petitioner and Mukiri Muchiri Respondent and The Speaker, the County Assembly of Nyandarua 1st Interested Party The County Assembly of Nyandarua 2nd Interested Party The County Governmnt of Nyandarua 3rd Interested Party Judgment 1.The Petition is dated 4th March 2021. 2.It is indicated in the title, as a Cause. 3.Although filed at the E&LRC, it is addressed at page 2 [Petition] to The Honourable High Court of Kenya at Nakuru. 4.It is indicated to be the ‘humble Petition of Zachary Mwangi Njeru’ while the Petitioner is named as Elizabeth Wanjiku Muthui. 5.It is based on the affidavit of Elizabeth Muthui, who identifies herself as the Acting Clerk of the County Assembly of Nyandarua. 6.The Court shall presume that Elizabeth Wanjiku Muthui is the Petitioner, and Zachary Mwangi Njeru, an interloper in the Petition. 7.The dispute arose when the Respondent, Mukiri Muchiri, was appointed Senior Deputy Clerk of the 2nd Interested Party, on 1st October 2020. 8.Elizabeth felt that the appointment was meant to sabotage her, in her role as the Acting Clerk. She submits that the position of Senior Deputy Clerk was unknown under the Couty Governments Act. 9.The Respondent was not appointed by the County Public Service Board, with the approval of the County Assembly, pursuant to Section 13 [1] of the County Governments Act. 10.Elizabeth states that the Respondent was placed on compulsory leave, for professional misconduct. 11.The Petitioner was subsequently appointed by the Nyandarua County Assembly as the Acting Clerk, on 2nd March 2021. 12.She states that the Respondent has been issuing misleading directives to staff, and accessing crucial official documents without authority, bringing the administration of the County Assembly into disrepute. 13.She invokes a panoply of Articles of the Constitution, which she submits in general, have been violated, in the appointment of the Respondent as Senior Deputy Clerk. They include: Articles 1, 2, 3, 10, 20,22,23, 165, 176, 232 and 259. 14.She invokes also, Sections 13, 14, and 21 of the County Governments Act. 15.Her prayer are: -a.Declaration that the Respondent was illegally in office.b.Declaration that the position of Senior Deputy Clerk, held by the Respondent is foreign, and therefore illegal.c.A declaration that the actions of the Respondent herein, in preventing the exercise of the functions of the Petitioner herein as the Acting Clerk, is illegal.d.Declaration that the Respondent’s interference with the functions of the Petitioner is illegal and unconstitutional.e.Declaration allowing the Petitioner herein to conduct the mandate of the Acting Clerk of the County Assembly of Nyandarua.f.Any other relief that the Honourable Court may deem fit to grant.g.Costs. 16.The most relevant and current response to the Petition, is contained in the Replying Affidavit of the Respondent, Mukiri Muchiri, sworn on 3rd February 2026. 17.He explains that he is now the substantive Clerk to the County Assembly of Nyandarua. 18.The Petition has been overtaken by events, and rendered academic. 19.It is also res judicata. 20.The issues raised were raised and addressed in other litigation: Nakuru H.C. Petition 26 of 2021; and Nakuru E&LRC Petition No.E028 of 2021. 21.In Nakuru H.C. Petition No. 26 of 2021, the Respondent was reinstated as the bona fide Acting Clerk, of the County Assembly of Nyandarua. The order was made on 5th April 2022. The Petitioner herein was the 4th Respondent, at the High Court. 22.In E&LRC Petition No. E028 of 2021, the Petitioner was among 10 Petitioners [including one Zachary Mwangi Njeru]. She was the 1st Petitioner. They brought the Petition against the Speaker, the County Assembly Service Board, and the County Assembly, Nyandarua. 23.The Petitioners alleged that they were unfairly and unlawfully dismissed. The Judgment of the Court notes that the 1st Petitioner [Petitioner herein] was at the time the Acting Clerk, County Assembly of Nyandarua. 24.The findings of the Court with regard the Petitioner, was that there were valid reasons to justify her dismissal. She was however awarded Kshs. 1 million for what was termed by the Court as unlawful termination. 25.The 1st Interested Party, the Speaker of the County Assembly, filed his affidavit sworn on 7th April 2021. 26.He states that the Petitioner was not the proper Acting Clerk to the County Assembly. 27.It is the prerogative of the County Assembly Board, under Sections 13 and 18 of the County Assembly Services Act to appoint Clerk to the County Assembly. 28.The Respondent was appointed as Senior Deputy Clerk in September 2017, and was acting as the Clerk upon being duly gazetted. 29.The Petitioner was not appointed as Acting Clerk, by recognized County Assembly Services Board. 30.She was appointed at a sitting chaired by Zachary Mwangi Njeru, who was not the Speaker, and hence Chairperson of the Board, mandated to chair its sessions. 31.Parties agreed to have the Petition considered and determined on the strength of their Pleadings, Documents and Submissions. 32.The issues are whether the Petition is res judicata; whether the Petitioner should be declared the valid Acting Clerk; and in general whether her prayers are merited. The Court Finds: - 33.The Petitioner invokes among others, Article 232 of the Constitution, and Section 13 of the County Governments Act. 34.Section 13 of the County Governments Act creates the Office of the Clerk to the County Assembly, and provides for staff to that office. 35.It is an office within the County Public Service, as described under the interpretation provision, Section 2 of the County Governments Act. 36.The Petition therefore involves employment in the County Public Service. 37.Firstly, under Article 234 [2] [i] this is a dispute that should have been placed before the Public Service Commission. 38.Primary jurisdiction would be the Public Service Commission under the said Article, and as elaborated under Section 77 of the County Governments Act and Section 87 [2] of the Public Service Commission Act. 39.The Court was asked to decline jurisdiction at the outset, but for a different reason, that the dispute did not involve an employer-employee relationship. 40.The Court declined challenge to its jurisdiction, but in the view of this Court, ought to have considered whether it had jurisdiction, under Article 234 [2] [i] of the Constitution, Section 77 of the County Governments Act and Section 87 [2] of the Public Service Commission Act. 41.Secondly, it is obvious that the dispute is res judicata. The High Court at Nakuru, in Petition 26 of 2021, restored the Respondent as the Acting Clerk to the County Assembly of Nyandarua, on 5th April 2022. 42.The Petitioner herein was the 4th Respondent at the High Court, and was aware about the orders made by the Hight Court. 43.She ought to have withdrawn this Petition, in which she is asking for among other orders, that she is allowed to continue acting in an office in which the Respondent was authorized by the High Court to continue acting. 44.The Petitioner was the 1st Petitioner, in E&LRC Petition E028 of 2021. The Respondents were named as Respondents. The Petitioner alongside other Employees, alleged that they were unfairly dismissed by the Respondents. 45.The Petitioner told the Court in Petition E028 of 2021, that she was the Acting Clerk. 46.In its Judgment the Court declined to reinstate her, but granted her Kshs. 1 million for unlawful termination. 47.She was therefore no longer an Employee, and she could not continue to pursue orders to be allowed to discharge her role as the Acting Clerk. 48.To discharge an acting role, she would have to be an Employee of the County Assembly Service Board in some other substantive role. She is a former Employee, a stranger to the County Assembly Services Board, with no recognisable employer-employee interest, capable of being protected by the Court. 49.Thirdly, the Respondent currently holds the substantive position of the Clerk, County Assembly of Nyandarua. 50.There is no power struggle between the Respondent and the Petitioner, as there was at the time she petitioned the Court in 2021. 51.As correctly submitted by the Respondent, the Petition has been overtaken by events. 52.It is the kind of a Petition that should long have been withdrawn. The Petitioner opted unwisely, to pursue the Petition, at considerable cost to the other Parties, while occasioning waste of judicial resources, which could have been avoided through a simple Notice of Withdrawal of the Petition. 53.Fourthly and in closing, there are significant flaws to the Petition pointed out at the outset. It is styled as a ‘Cause,’ and indicated to be ‘the humble Petition of Zachary Mwangi Njeru.’’ What kind of a Petition fails to disclose the correct Petitioner?It is ordered: -a.The Petition is declined.b.Costs to be paid by the Petitioner, to the Respondent and the Interested Parties. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68 [5] OF THE E&LRC [PROCEDURE] RULES, 2024 THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGERepresentation:Maina Ngaruiya & Company Advocates for the PetitionerWaichungo Martin & Company Advocates for the RespondentGKL Advocates for the 2nd Interested Party