https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1385

Ogega v Buyoya & 3 others (Petition E206 of 2025) [2026] KEELRC 1385 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1385 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E206 of 2025 JW Keli, J May 15, 2026 IN THE MATTER OF: THE ALLEGED VIOLATION & INFRINGEMENT OF ARTICLES 1(3), 2(1). 3(1), 10(2). 19(1) and (3), 20(1) and (2), 22(1) and (2) (c). 23(1) and (3). 25 (c). 27(1) and (4), 28, 29(d), 41, 47(1) and (2), 48, 50(1), 162(2)(a). 165(3)(b). 236(b). 258(1) and (2) (c) of THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ARTICLES 162(2) (a) AND 165(3) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE FAIR ADMINSTRATIVE ACTION ACT, NO. 4 OF 2015 IN THE MATTER OF: THE EMPLOYMENT ACT, NO. 11 OF 2007 Between Kennedy Gichana Ogega Petitioner and Alvin Omuga Buyoya 1st Respondent Office of the County Secretary Nairobi 2nd Respondent Nairobi County 3rd Respondent Nairobi County Public Service Board 4th Respondent Ruling 1.Kennedy Gichana Ogega was a Deputy Director of Gaming, Betting, and Lotteries within the Nairobi City County. He was aggrieved by some of the management decisions at the shop floor. He filed a constitutional petition dated 9th October 2025 through the law firm of Danstan Omari & Associates seeking the following orders:-a.A declaration that any decision, action or attempt to appoint, deploy, designate or otherwise permit the 1st Respondent to act or assume office as Acting Director, Gaming, Betting and Lotteries within Nairobi City County contrary to the Constitution of Kenya, the Employment Act, the County Governments Act, the Public Service (Values and Principles) Act, the Leadership and Integrity Act, the Nairobi City County Human Resource Policies and Procedures Manual and the approved departmental organogram is unconstitutional, unlawful, unreasonable and procedurally unfair.b.An order of certiorari quashing any letter, memo, posting order, minute, directive or administrative act purporting to appoint, deploy or recognise the 1st Respondent as Acting and/or Director, Gaming, Betting and Lotteries.c.An order of prohibition restraining the Office of the County Secretary, the Nairobi City County Government and the Nairobi City County Public Service Board, whether by themselves, their officers, agents or assigns, from authorising, permitting, gazetting, deploying, swearing in or in any manner enabling the 1st Respondent or any other person not lawfully eligible to act or assume office as Acting and/or Director, Gaming, Betting and Lotteries pending full compliance with the law and applicable human resource instruments.d.An order of mandamus compelling the Office of the County Secretary, the Nairobi City County Government and the Nairobi City County Public Service Board to implement a lawful, transparent and merit-based acting arrangement strictly in accordance with the Constitution, the Employment Act and the Nairobi City County Human Resource Policies and Procedures Manual, including fair consideration of the Petitioner as the substantive Deputy Director, pending any substantive recruitment.e.A direction that any recruitment to the substantive office of Director, Gaming, Betting and Lotteries be undertaken through an open, competitive and transparent process that complies with Articles 10, 27, 41 and 232 of the Constitution and all applicable statutes and policies, with written reasons to be provided to affected candidates upon request.f.Such further or other appropriate relief as the Court may deem fit under Article 23(3) of the Constitution, including supervisory or structural directions to secure compliance within a time fixed by the Court.” 2.The Respondents filed a response to the Application that accompanied the petition. The 1st Respondent filed a replying affidavit, and the other respondents filed grounds of opposition, a Notice of Preliminary Objection and a replying affidavit. 3.The Applicant filed a Notice of Motion application dated 16th January 2026 and sought for the following substantive order.“That the Honourable Court be and is hereby pleased to withdraw the petition herein ELRC Petition No. E206 of 2025 under no orders as to costs.” 4.By order dated 20th January 2026, which, as per the record, was in the absence of parties the Court ordered;“The petition is marked as withdrawn in terms of the application by the petitioner dated 16/1/2025. The file is closed.” 5.The Applicants filed responses to the aforesaid application after the Order of the court. The parties appeared before me on 10th February 2026, where, after hearing the Respondents, I set aside the ex parte order on costs and ordered a response and submissions. 6.The Respondents are only dissatisfied with order of no orders. The Petitioner filed further affidavit dated 1st March 2026. 7.At the outset, I wish to state that the applicable procedural rules in a constitutional petition are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules), and not the Civil Procedure Rules. 8.Rule 26 of the Mutunga Rules provides-:-1.The award of costs is at discretion of the court.2.In exercising its discretion to award costs, the court shall take appropriate measures to ensure that every person has access to court to determine their rights and fundamental freedoms. 9.My understanding of Rule 26 of Mutunga Rules is that the principle of costs follow the event is not automatically applicable in constitutional petitions. Award of costs is at discretion of the court which of course must be exercised judiciously. I perused the prayers sought in the petition and found they alleged breaches of the Constitution and administrative fairness. They are within category of public interest. The petition would qualify for non-award of costs as held in Jasbir Sing Rai & 3 others vs Tarlochan Singh Rai & 4 others cited by 2nd, 3rd and 4th Respondents to effect that public interest matters are exempt from the general rule of costs follow the event. 10.The instant application is without merit and is disallowed with no order as to costs. I allow the application dated 16th January 2026 and order the petition to be withdrawn, and is marked as withdrawn with no order as to costs. The file is marked as closed. 11.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In the Presence ofC/A OtienoPetitioner- Ms Waithera h/b OmariRespondents- Muriuki h/b Ndungu others