https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1960

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **PETITION NO. E023 OF 2026** IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 27, 28, 41, 43, 47, 48, 73, 236 AND 259 OF THE CONSTITUTION OF KENYA, 2010 **AND** IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT (NO. 4 OF 2015) **AND** IN THE MATTER OF THE EMPLOYMENT ACT, 2007 **AND** IN THE MATTER OF THE COUNTY GOVERNMENTS ACT BETWEEN SALIM ODENY..........................……………………………….**PETITIONER** **VERSUS** COUNTY GOVERNMENT OF SIAYA........…..….....**1ST RESPONDENT** SIAYA COUNTY PUBLIC SERVICE BOARD...…..**2ND RESPONDENT** **AND** CO-OPERATIVE BANK OF KENYA………………**3RD RESPONDENT** **RULING** 1. Contemporaneously the petition dated 5th March 2026, the Petitioner filed an application of even date seeking the following orders: * + 1. *Spent* 2. *Spent* 3. THAT pending hearing and determination of the main Petition, the Honourable Court be pleased to issue an order of *mandamus* compelling the Respondents to pay the Applicant's withheld salary and subsequent monthly salaries. 4. THAT pending the hearing and determination of the main Petition, the Honourable Court be pleased to issue an order of *mandamus* compelling the Respondents to enrol and retain the Applicant in the medical insurance scheme maintained by the 1st Respondent for its employees. 5. THAT the Honourable Court be pleased to issue a Temporary Injunction restraining the Respondents from interfering with the Applicant's employment, including initiating further disciplinary proceedings based on the same facts. 6. THAT costs of this application abide by the outcome of the petition. 2. The application is supported by the 9 grounds on its face as well as his supporting affidavit. He contends that having been appointed as the 2nd Respondent's Liaison Officer on Permanent and Pensionable terms on 6th November 2017, and without ever being subject to disciplinary proceedings, the Respondents started frustrating him and making the work environment intolerable. Particularly, he contends that when the new administration came into power after the 2022 general elections, the 1st Respondent alleged that his contract was pegged on the previous Governor's term. This was followed swiftly by denial of access to his office, which persisted despite his complaints. Furthermore, he contends that the Respondents refused to enroll him to the staff medical scheme like other employees. This was compounded on 26th February 2026 when he checked the portal only to discover that his February 2026 pay slip had not been generated well past the 15th February deadline. Upon inquiry which as usual elicited no response he avers that he later realized that the Director of Human Resource Management had requested authorization for stoppage of his salary via a letter dated 16th February 2026. The Petitioner further contends that the said letter purported to rely on a resolution dated 29th February 2026, a date that does not exist in the 2026 calendar. He also avers that it was only on 17th February 2026 that the Director constituted a disciplinary sub-committee to investigate his case, long after the decision to withhold his salary had already been implemented, thereby demonstrating that the disciplinary process was being undertaken retrospectively to justify a decision that had already been made. The Petitioner further deposes that the loan he obtained from the Interested Party on the strength of his employment is now at risk because the Respondents withheld his salary from 15th February 2026 and are in the process of removing him from the payroll without assigning any lawful reason or according him due process. He therefore contends that unless the Court grants the interim reliefs sought, he stands to suffer irreparable loss through possible loan default and the attendant financial consequences. Conversely, he maintains that the Respondents will suffer no prejudice if his salary, employment benefits and employment status are preserved pending the determination of the Petition. Consequently, he submits that the balance of convenience favours maintaining the *status quo*. 3. The Respondents opposed the application through a replying affidavit sworn on 10th April 2026 by Walter Okello, the Chief Officer for Governance and Administration, County Government of Siaya. He deposes that the application is an abuse of the court process and maintains that none of the Petitioner's constitutional or statutory rights has been infringed since the disciplinary process remains ongoing. He states that the Petitioner was issued with a show cause letter after absenting himself from duty for thirty days on the explanation that no one had informed him to resume work following the COVID-19 period. According to the deponent, the Petitioner's unexplained absence and unknown whereabouts necessitated the stoppage of his salary. 4. In response, the Petitioner filed a supplementary affidavit sworn on 17th April 2026 maintaining that it was improper for the Respondents to stop his salary while simultaneously asserting that the disciplinary process was still pending. He further contends that he is under no obligation at this interlocutory stage to expound on the constitutional provisions relied upon, as those issues are reserved for determination at the hearing of the Petition. Regarding the allegation that he failed to resume duty after the COVID-19 period, he avers that the Respondents have produced no evidence demonstrating that employees were formally directed to return to work. On the contrary, he maintains that he consistently reported to work but was denied access to his workplace, a matter he expressly raised in his response to the show cause letter, which elicited no response from the Respondents. He further contends that upon receiving his response to the show cause letter, the Respondents ought to have invited him to a disciplinary hearing instead of proceeding to withhold his salary. 5. The application was canvassed by way of written submissions Although granted the opportunity to do so, the Respondents did not file any submissions in opposition to the application. Petitioner's Submissions 1. In support of the application the Petitioner identifies two issues for determination: * + 1. Whether the Applicant has made out a case for grant of temporary injunction; and 2. Who should bear the cost for the Application. 2. On the first issue the Petitioner submits that he has satisfied all the three conditions for grant of injunctions namely; establishment of a prima facie case, demonstration of irreparable injury and that the balance of convenience shifts in his favour. He relies on **East African Industries *v* Trufoods** **[1972] EA 420**, **Giella *v* Cassman Brown *&* Co. Ltd** **[1973] EA 358**, **Nguruman Limited *v* Jan Bonde Nielsen *&* 2 others** **[2014] eKLR** as adopted in **Makinda *&* 46 others *v* Siaya County Public Service Board *&* another; Siaya County Government Workers Union (Interested Party)** **[2023] KEELRC 946 (KLR)**, and the three-part test enunciated in **RJR-MacDonald Inc. *v* Canada (Attorney General)** **[1995] 3 SCR 199**. 3. On a *prima facie* case he submits that he has established one with a probability of success because the Respondents unlawfully stopped his salary without affording him a hearing. He relies on **Mrao Ltd *v* First American Bank of Kenya Ltd *&* 2 others** **[2003] KLR 125** for the definition of a *prima facie* case and **Makinda *&* 46 others *v* Siaya County Public Service Board *&* another** **[2023] KEELRC 946** **(KLR)** for the proposition that, at the interlocutory stage, the Court only undertakes a preliminary assessment of the pleadings, the factual foundation of the claim, the parties' respective positions and the remedies sought. He further cites **County Government of Siaya *v* Kenya National Union of Nurses [2025] KEELRC 3445 (KLR)**, to argue that an applicant need only demonstrate an arguable case and not one that must ultimately succeed. He further highlights the fact that his salary was stopped and he was subjected to prolonged disciplinary proceedings contrary to the principles of procedural fairness. He relies on **Anthony Mkala Chitavi *v* Malindi Water *&* Sewerage Company Ltd** [**2013] eKLR** to submit that an employee is entitled to be informed of the allegations against him and afforded a reasonable opportunity to respond before adverse action is taken. He asserts that he responded to the show cause to which the Respondent neither sought clarification before resorting to stopping his salary. He further relies on **David Oloo Onyango *v* Attorney General** **[1987] KECA 56 (KLR)**, and **Odongo *v* County Government of Siaya** **[2024] KEELRC 13316 (KLR)** to submit that failure to comply with the rules of natural justice renders an administrative decision unlawful irrespective of whether the ultimate decision might otherwise have been justified. 4. On irreparable injury the Petitioner submits that he will suffer irreparable harm if the interim orders are declined because damages will not adequately compensate him for the loss likely to result from the Respondents' actions. He relies on **County Government of Siaya *v* Kenya National Union of Nurses** **[2025] KEELRC 3445 (KLR)**, which adopted the definition of irreparable injury in **Halsbury's Laws of England**, to argue that irreparable injury refers to substantial harm that cannot be adequately remedied by damages. He asserts that if he is dismissed before the Petition is determined, the subject matter of the suit will be lost because reinstatement cannot be granted at an interlocutory stage. In support, he relies on **Joab Mehta Oudia *v* Coffee Development Board of Trustees** **[2014] KEELRC 698 (KLR)**, **Ombati v Governor Nyamira County *&* another** **[2023] KEELRC 3051 (KLR)**, and **Kinyanjui *v* Rural Electrification *&* Renewable Energy Corporation *&* another** **[2023] KEELRC 580 (KLR)**, which hold that reinstatement is a final remedy and that conservatory orders cannot ordinarily undo an already completed termination. The Petitioner further submits that he is entitled to remain in employment until retirement in 2042 and that termination would extinguish his legitimate expectation of continued employment. He asserts that if dismissed, the statutory limitation on reinstatement under section 12(3)(vii) of the Employment and Labour Relations Court Act may render that remedy unavailable by the time the Petition is heard. He also contends that the statutory compensation under section 49(1)(c) of the Employment Act would not adequately compensate him for the loss of approximately sixteen years of anticipated employment and the continued denial of medical insurance benefits. 5. As for the balance of convenience, he submits that it favours preservation of the status quo. He asserts that the Respondents will not suffer any prejudice if his salary and employment benefits continue being paid pending determination of the Petition as he has always been on the payroll, no additional obligation will arise, no termination has yet occurred and no replacement has been recruited. Conversely, he avers that he will lose his livelihood, medical cover, income and ability to meet his financial obligations, thereby exposing him to third-party claims and other serious hardship. 6. On entitlement to conservatory orders the Petitioner submits that he has also met the threshold for grant of the same. He relies on **Invesco Assurance Co. Ltd *v* MW (Minor suing through next friend and mother HW)** **[2016] KEHC 5318 (KLR)** to submit that conservatory orders are intended to preserve the subject matter pending determination of the suit. He further cites **Muturi *v* Havi *&* 21 others** **[2022] KECA 938 (KLR)** and **Munya *v* Kithinji *&* 2 others** **[2014] KESC 30 (KLR)** to argue that, having satisfied the ***Giella*** principles, he has also demonstrated that public interest favours preservation of the *status quo*. 7. On public interest, the Petitioner submits that the dispute concerns adherence to constitutional standards of fairness in public service and that the Court's intervention will reinforce the principle that public officers are servants of the people and must exercise their powers in accordance with the Constitution and the law. He relies on **Nubian Rights Forum *&* 2 others *v* Attorney General *&* 6 others** **[2019] KEHC 8192 (KLR)**, and **Birir *&* another *v* Narok County Government *&* 5 others** **[2014] KEHC 1199 (KLR)**. 8. As for costs the Petitioner submits that, having established the requirements for the grant of interim relief, the Respondents should bear the costs of the application. He relies on section 27 of the Civil Procedure Act and the commentary in **Sir Dinshah Fardunji Mulla's *The Code of Civil Procedure* (18th Edition)** for the principle that costs ordinarily follow the event unless the Court directs otherwise. Disposition 1. The motion by the Petitioner seeks interlocutory relief. He asserts the Respondents stopped his salary without affording him an opportunity and therefore he seeks the intervention of the Court in the matter. At the interlocutory stage, the Court only undertakes a preliminary assessment of the pleadings, the factual foundation of the claim, the parties' respective positions and the remedies sought. I am not required to determine anything in so far as the merits of the case goes, but merely to establish that there is a *prima facie* case. Conservatory orders are intended to preserve the subject matter pending determination of the suit. 2. In my considered view, the only orders that commend themselves for me to make in order to preserve the substratum of the suit are an order that pending hearing and determination of the main Petition, an order of *mandamus* do issue compelling the Respondents to pay the Applicant's salary from the date of filing of the Petition and subsequent monthly salaries until the determination of the Petition herein. In addition, the Court hereby issues an injunction restraining the Respondents from interfering with the Applicant's employment, including initiating further disciplinary proceedings based on the same facts. These orders are to subsist pending the hearing and determination of the Petition directions whereof will be given after this Ruling. The costs of the motion will abide the outcome in the Petition. It is so ordered. **Dated and delivered at Kisumu this 13th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**