https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2425

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS CONSTITUTIONAL PETITION NO. E217 OF 2025 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF ARTICLES 2, 19, 20(1-4), 21(1) & 3, 22(1) & (2)(a) & (c) 23(1) & (3), 24, 25(a)&(c), 27, 28, 29(a), (c) & (d), 41 (1) & (2) (a) & (b), 47, 48, 50 (1), 232 (1) & (2) (a), 234 (1) & (2), 235 and 236 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE VIOLATION OF THE PETITIONER’S RIGHTS TO FAIR ADMINISTRATIVE ACTION, FAIR LABOUR PRACTICES, DIGNITY, AND NON-DISCRIMINATION AND IN THE MATTER OF THE UNFAIR, UNLAWFUL AND UNCONSTITUTIONAL DISMISSAL OF THE PETITIONER AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT, THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, THE FAIR ADMINISTRATIVE ACTION ACT, AND THE EMPLOYMENT ACT BETWEEN EVANS JAMHURI NAMAYI……………………..…………….………………………………………....PETITIONER -VERSUS- THE PUBLIC SERVICE COMMISSION……………………..………………………….……..1ST RESPONDENT THE NATIONAL TREASURY & ECONOMIC PLANNING……………………………2ND RESPONDENT THE COUNTY GOVERNMENT OF BUSIA……………………..……………………..…...3RD RESPONDENT THE HON. ATTORNEY GENERAL……………………..…………….………………………...4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Petitioner commenced this suit vide a Petition dated 22nd October 2025 seeking:- 2. *Declaration be and is hereby issued that the letter dated 20th August 2025 by the 1st Respondent, purporting to dismiss the Petitioner violates Articles 10, 20(1), 25 (c), 27(1), 41, 47, 48, 50, 232, and 236 of the Constitution as read together with the Fair Administrative Actions Act, the Employment Act, the Public Service Commission Act and the Public Service (Values and Principles) Act and the decision and any action thereto are invalid, null and void ab initio.* 3. *An Order of certiorari be and is hereby issued calling into this court and quashing the decisions and directives made by the 1st Respondent through its letter dated 20th August 2025 purporting to dismiss the Petitioner from his duties.* 4. *An order of mandamus be and is hereby issued directing the Respondents to reinstate the Petitioner to the payroll of the 2nd Respondent, or in the alternative, to deem him to have served until retirement in December 2025 with full salary, pension, and benefits.* 5. *An Order of Mandamus be and is hereby issued compelling the 2nd Respondent to process and release to the petitioner salary accrued as from 20th August 2025.* 6. *An Order of Mandamus be and is hereby issued compelling the Respondents to process and release the Petitioner’s terminal dues and pension forthwith.* 7. *A Declaration be and is hereby issued that the disciplinary process the Petitioner was subjected to was in violation of Articles 47, 48, of the Constitution as read together with the Fair Administrative Actions Act, the Employment Act, the Public Service Commission Act and the Public Service (Values and Principles) Act and is therefore unconstitutional, illegal, null and void ab initio.* 8. *A Declaration be and is hereby issued that the failure of the 1st Respondent to determine the Petitioner’s appeal within a reasonable time violates Article 47 of the Constitution.* 9. *An Order of compensation be and is hereby issued pursuant to Article 23 of the Constitution directing the Respondents jointly and severally to pay damages to the Petitioner herein for the violation and contravention of his fundamental rights and freedoms by subjecting him to an illegal and unconstitutional disciplinary process and illegal and unfair dismissal.* 10. *Any other relief and/or orders the Honorable court deems appropriate,just, and/or fit to grant.* 11. *The Respondents bear cost of this Petition.* 12. The Petition was filed alongside the Petitioner’s Supporting Affidavit sworn on 22nd October 2025, and the documents annexed in support of the Petition. 13. In response to the Petition, the 1st Respondent filed a Replying Affidavit sworn by PAUL FAMBA on 16th February 2026; while the 2nd and 4th Respondents filed a Replying Affidavit sworn by ERASTUS MUCHIRA on 17th February 2026. The Petitioner’s case in summary 1. The Petitioner’s case is that he was appointed by the 2nd Respondent as an Accountant on 27th July 1987 on permanent and pensionable terms, in accordance with the relevant provisions governing public service employment. He entered employment under Job Group "J". Following the promulgation of the Constitution of Kenya, 2010, and the enactment of the County Governments Act, No. 17 of 2012, devolved units of governance were established and the Petitioner alongside other public officers were seconded to various county governments to provide technical assistance in establishing administrative and financial structures at the devolved level pursuant to Section 42 of the Public Service Commission Act, 2017. 2. It is averred that subsequently, on or about 29th October 2014, the secondment of the Petitioner to the 3rd Respondent was effected. His role was assisting in the establishment and strengthening of the 3rd Respondent’s financial and accounting systems and aligning them with the financial management structures of the 2nd Respondent in accordance with the Public Finance Management Act, 2012. The Petitioner clarifies that his letter of secondment did not specify any duration, limitation, or date by which he was required to cease his service with the 3rd Respondent or resume duties with the 2nd Respondent. Once he began working with the 3rd Respondent as an Accountant, the Petitioner avers that his duties included: the timely and accurate preparation of management and financial reports; planning, directing and coordinating accounting operations; supervising subordinate staff; training and capacity-building of newly recruited accountants; certifying and verifying returns and vouchers; monitoring the collection of revenue; and maintenance of accounting records. 3. It is the Petitioner’s case that his problems began when the 2nd Respondent issued the 3rd Respondent with a letter dated 14th September 2020 requesting the release of the Petitioner back to the 2nd Respondent. In response to the same, the 3rd Respondent wrote a letter dated 28th September 2020, requesting to retain the Petitioner and two other officers on account of their indispensable expertise in financial reporting and in guiding newly appointed accountants during the critical end-of-financial-year period. The 2nd Respondent did not immediately respond to the request for retention of the Petitioner. 4. In the meantime, it is averred that the 3rd Respondent issued the Petitioner with a three-year contract dated 9th December 2020, expiring in 31st December 2023 due to operational exigencies and the urgent need to close the financial year. Eventually, by a letter dated 14th June 2021, the 2nd Respondent responded to the 3Rd Respondent’s letter dated 28th September 2020, formally declining their request to retain the Petitioner, and directing that he reports back to the parent Ministry. Vide a letter dated 22nd June 2021, the 3rd Respondent explained to the 2nd Respondent the operational circumstances surrounding the Petitioner’s continued service and reiterated that the retention was necessary to ensure compliance with the Public Finance Management Act, and disclosed that it had already executed formal contracts with the affected officers including the Petitioner, pending the formalization of their continued secondment through the 1st Respondent. The letter further confirmed that the 3rd Respondent had kept the 2nd Respondent informed, had requested for the Petitioner’s IPPD payroll details to facilitate salary transfers, and expressed willingness to reimburse any salaries or allowances paid to the Petitioner by the 3rd Respondent during the overlap period. 5. The Petitioner states that he personally followed up on the matter through physical visits to the 2nd Respondent’s offices to seek formal guidance and direction on his employment status, and received assurance that formal communication would be issued in due course. 6. The Petitioner’s grievance is that the 2nd Respondent failed and/ or neglected to issue any formal directive or take the necessary administrative action to regularize the Petitioner’s continued service with the 3rd Respondent, but instead, on or about 17th March 2023, nearly three years after correspondence between the 2nd and 3rd Respondents began, the 2nd Respondent issued the Petitioner with a Notice to Show Cause dated 17th March 2023, alleging desertion of duty from his substantive position at the National Treasury since 30th September 2020. The Petitioner contends that he responded to the Notice to Show Cause, explaining that he had been serving the 3rd Respondent since the purported desertion pursuant to his initial secondment to them and subsequent contract issued by the 3rd Respondent. In the intervening period, the Petitioner’s contract with the 3rd Respondent, upon its expiry on 31st December 2023, was renewed for a until 18th August 2025, when he was formally released to report back to the 2nd Respondent. 7. It is stated that the Petitioner appeared before the 2nd Respondent's Human Resource Management Advisory Committee (HRMAC) on 20th November 2024, to show cause on the allegations of desertion, and he provided documentary evidence of his engagement with the 3rd Respondent County, as well as demonstrating that his whereabouts were known to his supervisors. The Committee acknowledged his submissions and advised the Petitioner to seek clearance with the 3rd Respondent at the end of his contract term and resume duty with the 2nd Respondent. In compliance with the direction issued to him, the Petitioner confirms that he cleared with the 3rd Respondent on 18th August 2025, and reported back on 19th August 2025, to the 2nd Respondent, where the Director of Sub-County treasury began to prepare his posting. 8. It is stated that the Petitioner received a letter dated 20th August 2025 from the 1st Respondent addressed to the 2nd Respondent, indicating that he had been dismissed from public service with effect from 30th September 2020 on allegations of desertion of duty, and that any salaries and allowances paid between 30th September 2020 and 14th June 2021 be recovered. The Petitioner complains that the decision taken by the 1st Respondent was made arbitrarily, without the benefit of any proper investigation into the allegations leveled against him, and without granting him an opportunity to defend myself. The 1st Respondent also failed to provide grounds for the Petitioner’s dismissal as required by law. The Petitioner further complains that the 2nd Respondent has failed to issue a response or communicate its position regarding his dismissal from service, but has withheld the Petitioner’s remuneration from 20th August 2025 to date, thereby infringing on his constitutional and statutory rights as a public officer. 9. The Petitioner confirms that he lodged an appeal against the decision of the 1st Respondent to dismiss him from service in accordance with Section 74 of the Public Service Commission Act, vide a letter dated 16th September 2025, but the 1st Respondent has failed to render a decision on the same or provide any communication on its status. The Petitioner blames his predicament on a misunderstanding and administrative stalemate between the 2nd and 3rd Respondents, and categorizes himself as an innocent public officer caught in the bureaucratic crossfire, who faces the possibility of losing his hard-earned pension and retirement benefits close to his retirement date of December 2025. He confirms that he has exhausted all available internal dispute resolution mechanisms and sought intervention from the concerned authorities, but the 1st Respondent has failed to act on his appeal and continues to enforce the impugned dismissal decision. 10. The Petitioner contends that the decision of the 1st Respondent to dismiss him from service was procedurally flawed, substantively irrational, and, illegal, irregular and unconstitutional. He pleads that his Article 41 and 47 rights to fair labour practices and fair administrative action have been violated, as well as Articles 10, 27,28, 48, 50, 73(2), 232, 234,235, and 236 of the Constitution; Sections 5, 12 and 45 of the Employment Act; Sections 4 and 6 of the Fair Administrative Action Act, 2015; Sections 60, 61, 62, 63 and 69 of the Public Service Commission Act, 2017; and Sections 7 and 9 of the Public Service (Values and Principles) Act, 2015. 11. The decision to dismiss the Petitioner retrospectively from 30th September 2020 also violated his legitimate expectation that his service with the 3rd Respondent, undertaken under the supervision and knowledge of the 2nd Respondent, would be regularized, formalized, and recognized as lawful public service, which arose from the clear correspondence between the 2nd and 3rd Respondents confirming awareness of his deployment and retention; the 3rd Respondent’s formal request for his continued service and reimbursement arrangement; the Petitioner’s numerous follow-ups and assurances received from the 2nd Respondent’s officers that the matter would be addressed; and the failure of the 1st Respondent to nullify his engagement at any material time. Respondents’ and Interested Party’s cases in brief 1st Respondent 1. The 1st Respondent affirms its mandate to appoint, and exercise disciplinary control over public officers under Article 234 of the Constitution, Section 65(1) of the Public Service Commission Act Cap 185 and Regulation 60(1) of the Public Service Commission Regulations 2020. It states that the facts giving rise to the instant dispute are that the Petitioner was an employee of the 2nd Respondent, serving as an Accountant under permanent and pensionable terms of service. Contrary to his claims, he was deployed to the County Government of Busia vide letter Ref. AG. 14/30A (154) dated 29th October 2014, on a temporary basis, to support the 3rd Respondent County Government with accounting services, pending capacity building of newly recruited County staff. The 1st Respondent emphasizes that the engagement of the Petitioner by the 3rd Respondent was not on the basis of a secondment as alleged, but rather a deployment, for the reason that the Petitioner’s engagement did not meet the requirements for a secondment under Regulation E32 of the Code of Regulations (revised 2006), which were applicable at the material time and governed the conduct and terms of service for civil servants, namely, it was for a period exceeding the three (3) years provided for in secondments; the Petitioner was only temporarily deployed to support the County Government of Busia; and the Petitioner remained in the 2nd Respondent's payroll and continued to be paid by the 2nd Respondent until his salary was stopped when he failed to return to the National Treasury despite several directives to do so. 2. It is averred that the National Treasury vide a letter Ref. TNT/HRM/CONF. 8/04 'F'/ 22 dated 3rd August 2020, wrote to the County Secretary, Busia County directing that it releases the Petitioner together with other accountants back to the National Treasury by 30th September 2020, as the County had failed to absorb them into their service as per the National Treasury's request communicated vide a letter dated 16th May 2016 Ref. No. AG. 14/03/1 VOL. 1 (8). In the said letter, the County was requested to either absorb the deployed accountants or release them back to the National Treasury. The County Secretary, County Government of Busia wrote to the Principal Secretary, National Treasury vide letter Ref. CG/BSA/CS/STAFF/2 (47) dated 7th September 2020, requesting to retain three accountants, including the Petitioner, for a further period of two (2) years to capacity build newly recruited accountants. Vide a letter dated 28th September 2020 Ref. No. CG/BSA/CS/STAFF/2 (58) addressed to the Principal Secretary National Secretary, the County Government of Busia released four (4) officers back to the National Treasury and requested that the County be allowed to retain three (3) officers, including the Petitioner, for a period of two (2) years. The Petitioner was then appointed by the said County Government as a Senior Accountant on a three-year contract, vide an appointment letter dated 9th December 2020 Ref. CG/BSA/CPSB/HRM/10 VOL.2/188, which he duly accepted, and informed the Principal Secretary National Treasury vide a letter dated 8th January 2021. In his letter the Petitioner requested to be seconded to the County for a period of three (3) years, which request was not approved. Nonetheless, the Petitioner proceeded to take up the contractual appointment, contravening Regulation 37(13) of the Public Service Commission Regulations, 2020 which provides that a public officer shall not proceed on secondment before being notified in writing by the Commission. 3. The 1st Respondent contends that the National Treasury vide a letter dated 14th June 2021 Ref. 1992050067/(41) wrote to the County Government of Busia reiterating that it was required to release all officers that had been deployed to the County by 30th September 2020, which it had not done. It affirmed its refusal of the County's request to retain three (3) officers, and once again directed the County to release the officers back to the Ministry with immediate effect, failure to which their salaries would be stopped. The request for release of the officers who were yet to return to the Ministry, including the Petitioner, was repeated by the National Treasury vide a letter dated 27th January 2022, Ref. 1992050067/44 addressed to the County Government of Busia, but it was not complied with. Having failed to report back to the National Treasury despite numerous letters directing him to do so, the Petitioner's salary was stopped with effect from 14th June 2021 and a show cause letter Ref. No. 1987045748/44 dated 17th March 2023, was issued to him on account of desertion of duty. 4. The 1st Respondent admits that the Petitioner responded to the notice to show cause vide a letter dated 13th April 2023, wherein he admitted that he took up a contractual position with the County Government of Busia contemporaneously while he remained an employee of the National Treasury under permanent and pensionable terms without the requisite approval for secondment by the 1st Respondent. Being found to have a case to answer, it is averred that the Petitioner was invited vide letter Ref No. CONF/1987045748 dated 20th November 2024, for a hearing of his case scheduled for 27th November 2024. He was informed of his right to legal representation and right to call witnesses to testify on his behalf. Per the minutes of the Human Resource Management Advisory Committee (HRMAC) meeting held on 5th February 2025, the Petitioner appeared before the sub-committee for the hearing of 27th November 2024, and admitted that his continued service to the County Government of Busia and failure to report back to the National Treasury after expiry of his deployment was due to misinformation from his colleagues at the County Government. The HRMAC recommended to the Authorized Officer that the Petitioner be dismissed from service on account of desertion of duty with effect from 30th September 2020, the date that he was expected to report back to the National Treasury, and that the salaries and allowances paid for the period between 30th September 2020, up to and including 14th June 2021 be recovered from him. 5. The 1st Respondent relies on Section 65(3) of the Public Service Commission Act Cap. 185 for the position that the Petitioner’s case was forwarded by the Authorized Officer to the 1st Respondent Commission for determination as had served for a period of more than fifteen years in the service. Upon consideration of the matter, the Commission pursuant to Section 68 of the Public Service Commission Act as read with Section 4.6 of the Discipline Manual for the Public Service Revised 2022, rightfully and justifiably dismissed the Petitioner from service on account of absence from duty without lawful cause. The Commission's decision was communicated to the Petitioner by the National Treasury vide a letter dated 1st September 2025 Ref No. TNT/HRM/CONF/1987045748/14. The 1st Respondent denies receiving any appeal against its decision from the Petitioner. 6. All purported violations of the Constitution or of the law are denied by the 1st Respondent, and they aver that the Petitioner was given the opportunity to respond to the allegations raised against him and accorded a fair hearing before the matter was forwarded to the Commission for the final decision. The 1st Respondent’s position is that by opting to remain in the service of the County Government of Busia rather than reporting back to his parent Ministry, notwithstanding several written directives requiring him to do so, the Petitioner absented himself from duty without permission, as he remained a substantive employee of the National Treasury throughout his deployment. He also violated Regulation 37(13) of the Public Service Commission Regulations, 2020 by taking up a 3-year contract with the 3rd Respondent while employed on permanent and pensionable terms by the 2nd Respondent without the requisite approval for secondment, thus the engagement was unlawful, irregular and unprocedural. 2nd and 4th Respondents 1. The 2nd and 4th Respondents align themselves with the version of events as enumerated by the 1st Respondent save to disclose that the Petitioner’s response the notice to show cause dated 17th March 2023 was forwarded to the Director Accounting Services for comments and recommendations via memo Ref. No. TNT/HRM/CONF/198704578/7 dated 5th May 2023. They also take the position that the Petitioner was lawfully and procedurally dismissed from service, hence the Petition should be dismissed for lack of merit. 2. The 2nd and 4th Respondents further challenge the Petition on the basis that the Petitioner has failed to demonstrate with a reasonable degree of precision the provisions of the Constitution or any other law which have been violated by the Respondents, how they were violated, and the particulars of such violations as was espoused in the Anarita Karimi Njeru v Republic (1979) eKLR case. DETERMINATION 1. Following directions by the court that it would determine the Petition through written submissions, the Petitioner and 1st, 2nd 4th Respondents filed their respective submissions. Issues for determination 1. The Petitioner distilled the following issues for determination in his submissions dated 2nd June 2026: * 1. Whether the substance of termination of the Petitioner’s employment was fair, lawful, reasonable and justifiable. 2. Whether the Respondent followed the requisite procedure in the termination of the employment. 3. Whether the conduct of the Respondents herein violated the Petitioner’s Constitutional rights and fundamental freedoms. 4. Whether the Court should grant the Petitioner the remedies sought. 2. The 1st Respondent filed submissions dated 30th June 2026, where they identified the following issues: 3. Whether the Petitioner’s dismissal was substantively and procedurally fair. 4. Whether the Petitioner’s Constitutional rights were violated. 5. Whether the Petitioner is entitled to the reliefs sought. 6. Finally, the 2nd and 4th Respondents identified the following issues for determination in their submissions dated 6th May 2026: w 1. Whether the Petitioner’s dismissal on account of desertion of duty was lawful and procedurally fair. 2. Whether the Petitioner’s constitutional rights were violated and whether the Petition meets the constitutional threshold. 3. Whether the Petitioner is entitled to the reliefs sought. 4. The court finds that the issue for determination is whether the petition is merited. 5. The case before the court concerned unfair dismissal and pension claims. The respondent‘s position was that the petitioner, having been deployed on 2nd October 2024 to the 3rd respondent and failing to return to work after the recall vide letter dated 14th September 2020, and having subsequently taken up a three-year contract without the employee's permission, was deemed to have deserted work, as communicated vide letter dated 17th March 2023. 6. The 2nd respondent relied on the decision in KUDHEIHA v Cool Rivers Hotel Ltd on desertion. The court considered the averment of the petitioner in supporting affidavit as follows-The 2nd Respondent wrote a letter dated 14th September 2020 addressed to the 3rd Respondent requesting that I be released back to the 2nd Respondent. The 3rd Respondent responded to that letter by its letter dated 28th September 2020, requesting that it retain two other officers and me on account of our indispensable expertise in financial reporting and in guiding newly appointed accountants during the critical end-of-financial-year period. The 2nd Respondent did not immediately respond to the said request. In the meantime, due to operational exigencies and the urgent need to close the financial year, the County Government of Busia, the 3rd Respondent herein, issued me with a three-year contract dated 9th December 2020, effective until 31st December 2023, allowing me to continue providing training and accounting support and mentorship to the county's newly recruited staff. (Annexed hereto and marked as EJN - 03 is a copy of the Agreement dated 9th December 2020) 12. Subsequently, by a letter dated 14th June 2021, the 2nd Respondent formally declined the County Government's request for my retaining and directed that he should have reported back to the parent Ministry. (Annexed hereto and marked as EJN - 04 is a copy of the letter by the 2nd Respondent dated 14th June 2021) 13. In response, the 3rd Respondent, through a letter dated 22nd June 2021, explained the operational circumstances surrounding our continued service and reiterated that the retention was necessary to ensure compliance with the PFM Act, emphasizing that the County had already entered into formal contractual arrangements with the Petitioner and two others, pending the formalization of our secondment through the 1st Respondent. ((Annexed hereto and marked as EJN – 05 is a copy of the letter by the 3rd Respondent dated 22nd June 2021) 14. The letter further confirmed that the 3rd Respondent had kept the 2nd Respondent informed, had requested for my IPPD payroll details to facilitate salary transfers, and expressed willingness to reimburse any salaries or allowances paid to me by the 3rd Respondent during the overlap period. 1 I diligently followed up on the matter by personally visiting the offices of the 2nd Respondent on several occasions, seeking formal guidance and direction regarding my employment status in light of the correspondence between the two entities. Despite my good faith efforts and consistent pursuit of clarification, I was merely assured that an official communication would be issued, a promise that was never fulfilled. Notwithstanding the extensive, clear, and well-documented correspondence between the 2nd and 3rd Respondents, the 2nd Respondent failed and/or neglected to issue any formal directive or take the necessary administrative action to regularize my continued service with the 3rd Respondent. 7. The court discerned that the petitioner was aware of the communication to return to work, decline of retention, and willingly took up the contract without consent of the employer; thus had no intention to return. The court found a case of desertion. The petitioner vide letter dated 1st July 2025, long after the letter of desertion of 17th March 2023, wrote to the 3rd respondent on expiry of contract to be released back to the 1st respondent and was so released on 18th August 2025. The release was long after the disciplinary process he attended with the 1st respondent on the 20th November 2024. The court finds that the petitioner, having defied the call to return to the employer and having entered into a contract with another employer, was thus deemed to have deserted. The said contract was not secondment as it was issued independent of the employer. He is held to have deserted the employment of the 1st respondent. The reason for dismissal was valid. He was subjected to a disciplinary process of which I find no fault. On whether the petitioner is entitled to the relief sought 1. The petitioner sought for the following relief- 2. A Declaration be and is hereby issued that the letter dated 20th August 2025 by the 1st Respondent, purporting to dismiss the Petitioner violates of Articles 10, 20(1), 25 (c), 27(1), 41, 47, 48, 50, 232, and 236 of the Constitution as read together with the Fair Administrative Actions Act, the Employment Act, the Public Service Commission Act and the Public Service (Values and Principles) Act and the decision and any action thereto are invalid, null and void ab initio. I return in the negative having found the petitioner deserted employment and was fairly dismissed. 1. An Order of certiorari be and is hereby issued calling into this court and quashing the decisions and directives made by the 1st Respondent through its letter dated 20th August 2025 Purporting to dismiss the Petitioner from his duties. I return in the negative having found the petitioner deserted employment and was fairly dismissed. 2. An order of mandamus be and is hereby issued directing the Respondents to reinstate the Petitioner to the payroll of the 2nd Respondent, or in the alternative, to deem him to have served until retirement in December 2025 with full salary, pension, and benefits. I return in the negative. The petitioner cannot be awarded for period not worked. Those are anticipatory wages, and they are not provided for under the Employment Act. It was held by the Supreme Court that Ngokonyo & 2 others v Telkom Kenya Limited [2025] KESC 75 (KLR) –‘The designation of employment as permanent and pensionable did not guarantee tenure until retirement age. Such contracts remained terminable, subject to the law and terms of service. Retirement in public interest constituted a form of involuntary termination of employment. The employer bore the burden of proving that it is not in the public interest to retain the employee and must ensure compliance with due process. Claims for anticipatory salaries or future salary earnings lack a statutory foundation under both the repealed Employment Act and the current Employment Act (Cap 226).’ the claim is disallowed.’ 3. An Order of Mandamus be and is hereby issued compelling the 2nd Respondent to process and release to the petitioner salary accrued as from 20th August 2025. I return in the negative (Ngokonyo & 2 others v Telkom Kenya Limited [2025] KESC 75 (KLR) ) 4. An Order of Mandamus be and is hereby issued compelling the Respondents to process and release the Petitioner’s terminal dues and pension forthwith. The court finds that pension is a right of employee accrued in service. 5. A Declaration be and is hereby issued that the disciplinary process the Petitioner was subjected to was in violation of Articles 47, 48, of the Constitution as read together with the Fair Administrative Actions Act. the Employment Act, the Public Service Commission Act and the Public Service (Values and Principles) Act and is therefore unconstitutional, illegal, null and void ab initio. The court held the finding was valid. The petitioner was heard before dismissal. There was no evidence of lodging any appeal. 6. A Declaration be and is hereby issued that the failure of the 1st Respondent to determine the Petitioner’s appeal within a reasonable time violates Article 47 of the Constitution. There was no evidence of service of the appeal on the 1st and 2nd respondents. 7. An Order of compensation be and is hereby issued pursuant to Article 23 of the Constitution directing the Respondents jointly and severally to pay damages to the Petitioner herein for the violation and contravention of his fundamental rights and freedoms by subjecting him to an illegal and unconstitutional disciplinary process and illegal and unfair dismissal. The prayer is disallowed taking into account above findings. 8. The petition is held to lack merit. The petitioner is entitled to his earned pension in service of the 1st respondent save for the period he was illegally under contract of the 3rd respondent. 9. The court makes no order as to costs. 10. This file is marked as closed. 11. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner - Cynthia Ochieng h/b Manwa Respondent -Mochoge