https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2281

THE REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CONSTITUTIONAL PETITION NO. E197 OF 2025 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF: ARTICLE 19, 21, 22, 23, 42, 43, 47, 50, 162 & 165 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF: -AND CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 21, 22, 23, 41, 43, 47 & 50 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF: SECTION 3, 4 & 9(4) OF THE FAIR ADMINISTRATIVE ACTION ACТ, CHAPTER 7L LAWS OF KENYA IN THE MATTER OF: SECTION 10(5) OF THE EMPLOYMENT ACT, 2007 BETWEEN JULIANA OKENO OCHIENG……………………………………………………………………………… PETITIONER VERSUS KENYA FOREST SERVICE ........................................................1ST RESPONDENT/CROSS PETITIONER PUBLIC SERVICE COMMISSION …………………..……………………………………………2ND RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The petitioner, alleging unlawful alteration of her terms of employment by the employer, filed a petition dated 30th September 2025 against the respondents, under a certificate of urgency, seeking for the following relief - 2. A declaration that the 1st Respondent's actions in unilaterally altering and adversely varying the Petitioner's terms of employment without her consent, and in subjecting her to unlawful disciplinary proceedings, contravened Articles 27, 28, 41, 47, and 50(1) of the Constitution of Kenya, Section 5(3) & 10(5) of the Employment Act, and Section 4 of the Fair Administrative Action Act. 3. A declaration that the Petitioner's constructive dismissal by the 1st Respondent was unlawful, unfair, and unconstitutional. 4. An order of certiorari quashing the decision of the 1st Respondent contained in the letters dated 20th January 2025, 24th February 2025, and 2nd April 2025 purporting to redeploy, re-designate, and/or otherwise vary the Petitioner's employment. 5. An order directing the 1st Respondent to reinstate the Petitioner to her substantive position of Manager, Human Resource Management without loss of benefits, seniority, remuneration, or privileges, in accordance with Section 49(3) of the Employment Act and Section 12(3)(vii) of the Employment and Labour Relations Court Act. 6. In the alternative to prayer (d), an order for payment of maximum compensation for unfair and unlawful termination of employment, together with damages for violation of constitutional rights. 7. A declaration that the inordinate delay by the 2nd Respondent in determining the Petitioner's appeal contravened Articles 41, 47, and 50 of the Constitution of Kenya, and was contrary to the principles of expeditious and fair administrative action. 8. An order compelling the 2nd Respondent to expeditiously determine the Petitioner's appeal in accordance with the Constitution of Kenya, the Public Service Commission Act, and the applicable Regulations. 9. General damages, exemplary damages, and aggravated damages for violation of the Petitioner's constitutional rights. 10. Costs of this Petition, together with interest thereon at court rates. 11. Any other relief that this Honourable Court may deem just and expedient to grant in the circumstances. 12. The 2nd respondent on being served with the petition took corrective measures in favour of the petitioner vide decision dated 20th November 2025. On the 2nd December, the petitioner and the 2nd respondent appeared before Justice Bryam Ongaya (as the then was) and recorded consent adopted by the court as follows- (In court on 2nd December, 2025 before Honourable Justice Byram Ongaya) ORDER This matter coming up for Mention before Honourable Justice Byram Ongaya on the 2nd day of December 2025, in the presence of both Counsels for the Petitioner and the Respondent. IT IS HEREBY ORDERED THAT: 1. By consent of the parties present the reinstatement decision with full payment of all withheld remuneration be fully implemented by the 1st Respondent. 2. The Petitioner to serve a mention upon the 1st Respondent for mention on 19.2.2026 at 9:30 a.m. for confirming compliance and parties encouraged to compromise residual dispute with a view of recording a consent on return date as may be just. Given under my Hand and Seal of this Honourable Court at Nairobi this 2nd day of December, 2025 Penal Notice: Take notice that any disobedience or non-observance of the order of the court served herewith will result in penal consequences to you and any other person(s) disobeying and not observing the same SIGNED BY: HON. JUSTICE BYRAM ONGAYA’ 1. The applicant aggrieved with the decision of the 2nd respondent filed application dated 20th January 2026 by way of Notice of Motion seeking for the following orders- 2. This application be certified urgent and be heard ex parte in the first instance. 3. A conservatory order be issued staying execution of the decision of the 2nd respondent dated 26th November 2025 and all consequential orders arising from that decision pending the hearing and determination of this application. 4. A conservatory order be issued staying execution of the decision of the 2nd respondent dated 26th November 2025 and all consequential orders arising from that decision pending the hearing and determination of the cross petition dated 15th January 2026 5. That costs of this application be provided for. 6. The court directed the petitioner to file a response to the application and issued a hearing date of 19th February 2026. On that date, the petitioner was absent. The court was satisfied of service and proceeded to consider the application as merited and granted the interim orders as sought and gave directions on hearing of the petition and cross-petition. 7. The petitioner consequently filed the instant application by way of Notice of motion dated 19th February 2026 seeking for the following orders- a) THAT this application is hereby certified as urgent, heard ex-parte in the first instance and service thereof is dispensed with. b) THAT the Order issued by this Honourable Court on 19th February 2026 allowing the 1st Respondent's Notice of Motion dated 20th January 2026 be and is hereby varied and or set aside; c)THAT the Petitioner/Applicant's Notice of Preliminary Objection dated 18th February 2026 be set down for hearing and determination on priority basis; d) THAT the costs of this application be provided for. The grounds of the application 1. The 1st Respondent filed a Notice of Motion application dated 20th January 2026, together with a Cross- Petition dated 15th January 2026. The application was set down for Hearing on 19th February 2026 before Justice Byram Ongaya (as he then was) Subsequent thereto, Hon. Justice Byram Ongaya was elevated to the Court of Appeal; Notwithstanding the said elevation, this matter remained listed for Hearing of the 1st Respondent's application before Justice Byram Ongaya (Court 1) both in the e-filing portal and the day's cause list for 19th February 2026; On 19th February 2026, Counsel for the Petitioner/Applicant duly joined the virtual Court 1 session using the link provided in the Cause List, there being no prior notice or administrative communication indicating that the matter would be handled by а different Judge. At around 9.30AM, Counsel for the Petitioner/Applicant became aware that matters previously pending before Justice Byram Ongaya were being handled by Hon. Lady Justice Jemimah Wanza Keli, whereupon Counsel immediately joined the said virtual court session; No prior notice had been issued to the parties, litigants, or counsel informing them of the change in judicial assignment, as was the case with matters that were pending before justice Nduma Nderi and Justice Radido Stephen Okiyo; Upon inquiry by Counsel for the Petitioner/Applicant, the Honourable Court indicated that the matter had already been called out in the presence of Counsel for the 1st and 2nd Respondents and directions had been issued allowing the 1st Respondent's application dated 20th January 2026, staying the 2nd Respondent's decision dated 26th November 2025, and directing the filing of written submissions within fourteen (14) days; The failure by Counsel for the Petitioner/Applicant to be present at the time the matter was called out was neither deliberate nor contumelious, but arose from an excusable and inadvertent procedural mishap occasioned by the absence of notice regarding the change of Court; The Petitioner/Applicant stands to suffer grave prejudice as a result of orders issued in her absence, particularly given that this Honourable Court lacks jurisdiction to entertain, admit, hear and determine the 1st Respondent's application and Cross-Petition; It is in the interests of justice and fairness that this Honourable Court exercises its unfettered discretion to set aside the orders issued on 19th February 2026 so as to avert injustice arising from an excusable procedural error; The instant application has been filed timeously and without undue delay, immediately upon discovery of the said procedural inadvertence, and the Petitioner/Applicant has at all times acted diligently in the conduct of this matter; The 1st Respondent shall suffer no prejudice if the accompanying application is heard on priority and the reliefs sought, granted. Conversely, the balance of convenience overwhelmingly favours the Petitioner/Applicant whose employment rights are at imminent risk of being extinguished absent urgent protective intervention by this Court; It is just and lawful that this Notice of Motion is certified urgent, heard ex parte in the first instance and on priority basis and the reliefs sought granted ex tempore, so as to ensure that the ends of justice are met. Response 1. The 1st respondent opposed the application vide replying affidavit of Alex L lemarkoko, dated 31st March 2026, as follows- I am informed by Lawson Ondieki, a partner at Hamilton Harrison & Mathews Advocates for the 1st respondent, which information I verily believe to be true: On 22nd January 2026, Hamilton Harrison & Mathews Advocates served upon the petitioner's advocates, the 1st respondent's Notice of Motion application dated 20th January 2026. The forwarding letter affecting service clearly indicated that the application filed under certificate of urgency had been placed before Hon. Justice Nduma Nderi, the learned Judge certified the application urgent, directed that the application be served and responded to within ten (10) days; and the application was scheduled for inter partes hearing on 19th February 2026 before Hon. Justice Byram Ongaya. A copy ofthe email, together with the attachments, is on pages 1 to 4 of the exhibit produced herein and marked "ALL 1". Following service of the 1st respondent's application on 22nd January 2026, the petitioner was fully aware of the hearing date of the application and the requirement to file a response within 10 days from the date of service of the application. By a gazette notice number 1000 of 2026, Hon. Justice Byram Ongaya was appointed as a Judge of the Court of Appeal. A copy of the gazette notice is on page 5 of the exhibit. Notwithstanding the appointment of Hon. Justice Byram Ongaya as a judge of the Court of Appeal, the 1st respondent's application remained listed for hearing on 19th February 2026, and the parties were expected to attend court on that date. On 19th February 2026, the 1st respondent's advocates duly attended Court when the matter was placed before Hon. Lady Justice Jemimah Wanza Keli, who considered the 1st respondent's application dated 20th January 2026. The court was satisfied that the application had been duly served, and no response had been filed by the petitioner as at the time the matter was called out. Consequently, the Honourable Court allowed the 1st respondent's application as prayed. On 19th February 2026 at 9:26 a.m, the petitioner filed a Notice of Preliminary Objection in response to the 1st respondent's application. This was, however, after the Honourable Court had already heard and allowed the 1st respondent's application. The petitioner's Notice of Preliminary Objection was therefore filed out of time and after the determination of the 1st respondent's application and could not, in law or fact, operate to oppose an application that had already been allowed. The petitioner's advocate's non-attendance when the application was called out is not excusable, as the same arose from lapses on the part of the petitioner's advocate, which cannot be visited upon the Court or the 1st respondent. The nomination of Hon. Justice Byram Ongaya to the Court of Appeal was made on 27th January 2026, well before the hearing date of the 1st respondent's application on 19th February 2026, and the petitioner's advocate had sufficient time to make inquiries from the Court registry and ascertain the court that would handle the matter on the scheduled date. The petitioner's advocate failed to exercise due diligence to confirm the correct court or virtual session for the hearing of the application, and such failure does not constitute a basis for setting aside orders regularly issued by the Court. The petitioner has not demonstrated any sufficient cause or excusable mistake to warrant the setting aside or variation of the orders issued on 19th February 2026.m. The petitioner's challenge to the jurisdiction of this Honourable Court is unfounded, as the dispute arises from an employment relationship and falls squarely within the jurisdiction of the Employment and Labour Relations Court under Article 162 (2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. The application dated 19th February 2026 is an afterthought, intended to delay the expeditious determination of the petition and cross petition. It is in the interests of justice that the petitioner's application dated 19th February 2026 be dismissed with costs to the 1st respondent. I now produce the exhibit marked "ALL 1". 2. At the hearing, the petitioner alleged they had filed a notice of preliminary objection dated 18th February 2026, but the court did not trace the same in the court but noted the same was an annexure in the application. Decision 1. What is called for in the application is for the court to exercise its judicial discretion and set aside the default order and allow the petitioner to defend the application by the 1st respondent. The Court of Appeal in Pithoni Waweru Maina v Thuka Mugiria [1983] KECA 75 (KLR) held that the discretion to set aside should be exercised where necessary to avoid injustice or hardship resulting from accident, inadvertence or excusable error. The court found the reasons for non-attendance at court leading to default orders in favour of the 1st respondent were plausible. The matter was previously before Justice Byram Ongaya, who was elevated to the Court of Appeal. The applicant asserted that there was no prior notice that the file would be placed before me for hearing of the application dated 20th January 2026 by the 1st respondent on 19th February 2026. The counsel for the applicant, Mr. Philp Omoiti, appeared before the court on the material date, but after the court had already issued orders and advanced the same reason. I find the reasons advanced to be believable, and the non-attendance is explained. I do find the applicant was not afforded a reasonable opportunity to attend court and defend the application. A fair hearing is only met when a party is granted a reasonable opportunity to be heard. That was not met. The application dated 19th February 2026 is allowed on the basis of the right to be heard having not been fairly afforded to the applicant . The exparte orders are set aside. The status quo is ordered pending the hearing and determination of the application by the 1st respondent. 2. The court sets aside its orders of 19th February 2026 and directs that the alleged preliminary objection by the petitioner be heard together with the application by the 1st respondent. Directions to be issued. No order as to costs. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE IN THE PRESENCE OF: Court Assistant: Otieno Applicant – Philip Omoiti 1st Respondent- Lawson Ondieki 2nd Respondent - Koome