https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2387

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI** **CAUSE NO. E016 OF 2025** **FAWZIA DEAR OMAR [SUING ON BEHALF OF THE ESTATE OF** **H.E. KENETH MWAKOMBO KAMTO CLAIMANT** *VERSUS* **COUNTY GOVERNMENT OF KILIFI RESPONDENT** **RULING** The respondent, County Government of Kilifi, filed an application dated 6 June 2026, premised on the provisions of Order 8 Rule 3 and Sections 1A, 1B, and 3A of the Civil Procedure Rules Act, Order 51 of the Civil Procedure Rules seeking Orders: 1. *the Summons to attend Court issued against the County Executive Committee Member and the County Secretary be lifted or stayed pending the hearing and determination of this application.* 2. *The Court be pleased to grant leave to the Applicant to file and serve an amended response to the claim.* 3. *The costs of this Application be in the cause.* The application is supported by Winnie Luwali Advocate, the Chief Officer of the Public Service Administration, Communication and Participatory Development in the Department of Public Service Administration, Communication and Participatory Development and well conversant with the matters herein, thus competent to swear to support the application. Luwali avers that the Respondent is in the process of rectifying its pleadings to introduce critical evidence from the Department of Public Service, including vital payroll and financial records demonstrating that the deceased was fully compensated for his tenure, as well as clearance certificates. The evidence only recently became available. In the interest of justice, the trial proceeds based on complete and accurate financial records rather than the initial pleadings. The Respondent is ready and willing to abide by any directions the Court may give regarding the expeditious conclusion of this matter once the pleadings are amended. There is a solid defence that requires the Court's consideration in light of the amended pleadings. No prejudice will be caused to the claimant as the main suit has not yet been heard, and in the interest of fairness and justice, the Court should grant the prayers sought. In the Supporting Affidavit, Luwali avers that, following an exhaustive internal audit and a review of the matter, financial documentation from the Department of Public Service has been secured, providing definitive proof of payment for the deceased Deputy Governor's tenure. Various documents have been retrieved, including a bundle of payslips that clearly itemise all salary components and allowances paid to the deceased. 1. Through Gazette Notice No 2885 Vol. CXV -NO 33 of 1 March 2013 showing the remuneration package for deputy governors. 2. Clearance certificate dated 18 August 2017. 3. A letter dated 30 August 2017 showing the handing over and clearance confirmation. 4. An imprest certificate dated 9 November 2017. and 5. letter dated 22 November 2017 showing the deceased's confirmation of having cleared with the County. These documents confirm that all statutory remuneration, including applicable housing allowances and terminal benefits, were paid to the deceased Deputy Governor during his tenure. It is necessary to amend the Response to incorporate these specific evidentiary findings, as they directly contradict the Plaintiff's claim and are essential for the Court to determine the real matters in controversy. The current Replying Affidavit on record is now factually deficient and does not adequately address the core issues in light of this new information. It is only fair and in the interest of justice that the Applicant be allowed to withdraw/expunge the incomplete Affidavit and replace it with a comprehensive response. Luyali avers that there exist Summonses to attend Court issued against the County Executive Committee Member for Finance and the County Secretary on 8 June 2026. Since the Respondent is seeking to amend its Response to incorporate the new vital evidence, it is necessary to lift and stay the current Summons to allow for the orderly filing of the amended pleadings. To ensure that an incomplete record does not mislead the Court and to facilitate a fair hearing on its merits, the Application is made in good faith and at the earliest opportunity. In reply, the claimant filed the Replying Affidavit of Fawzia Dear Omar, the widow of the deceased and the administrator of the estate of the late H.E. Kenneth Mwkombo Kamto. She avers that the deceased was the Deputy Governor of Kilifi County from 2013 to 2017. The matter had a mention date on 22 June 2026 in relation to a court order for payment of pending dues of Ksh. 6,379,112.50 as pending house allowance not given to the deceased while serving as Deputy Governor, Kilifi County. Fawza avers that the money claimed from the respondent has never been paid to the estate. The respondent approached the court seeking an out-of-court settlement after admitting liability for the pending house allowance as per the Replying Affidavit of Jackson Mweni. The court granted an order for payment on 24 March 2026, with payment due within 14 days. The matter came up in court on 4 April 2026, when the respondent informed the court that it had not complied with the orders to make payment due to budgetary constraints and had not prepared the supplementary budget, which was undergoing public participation. The matter came up in court on 19 May 2026 to confirm compliance. The respondent failed to attend. The court summoned the County Executive Officer for Finance and the County Secretary on 8 June 2026. Despite admitting liability, the respondent neither attended nor made payment. Summonses to attend court were thus issued. The respondent has referred to Gazette Notice No. 28885 Vol CXV-No. 33 of 1 March 2013, which was subject to **Constitutional Petition No. 328 of 2016 filed by the Council of Governors against the Salaries and Remuneration Commission**, which, per the Notice, had failed to regularise house allowance to Deputy Governors and had not been paid house allowances for 3 years. The court held that the Deputy Governors were entitled to the claimed house allowances and that the SRC was to regularise the same benefits. The SRC issued a detailed circular on remuneration and benefits for state officers in the executive of County Governments, dated 9 August 2022. The attachment of payslips for 2016 belonging to the deceased is evidence that the house allowances were never paid, because the matter in Petition No. 328 of 2016, filed by the Council of Governors against the Salaries and Remuneration Commission, was in 2016, and the judgment was issued on 5 October 2018. The pay slips thus relate to salary, pension, and PAYE, not house allowance. The orders sought are meant to delay the conclusion of the matter herein and avoid payment of dues to the estate of the deceased and should thus be declined. Parties filed written submissions which are analysed in the findings below. **Determination** The respondent seeks a stay of the orders summoning the respondent's accounting officers to attend court to show cause why they have refused to make payment upon admission of liability. The respondent is further seeking leave to file and serve an amended response to the claim. The claimant objected to the application on the basis that there is an admission of liability and an offer to pay the dues claimed for house allowances in the amount of Ksh. 6,379,112.5 to the estate of the deceased, H.E. Kenneth Mwakombo Kamto. The claimant filed the claim on 30 October 2025. A summons was issued to the respondent, and in reply, a Replying Affidavit was sworn by Jackson Mweni, the respondent's Director of Human Resources. He averred that he is conversant with the facts of the claim and competent to file the response on behalf of the respondent. Under paragraph 3 of the Replying Affidavit dated 12 march 2926, Jackson Mweni avers: *At the onset, the respondent does not dispute liability in respect of the dues payable to the estate of the late H.E. Kenneth Mwakombo Kamto, who served as the first Deputy Governor of the County Government of Kilifi.* Jackson Mweni further avers that, upon allocation of funds, the payments due to the deceased's estate would be paid in full. Save for the Replying Affidavit, no response to the claims is required under the Employment and Labour Relations Court (Procedure) Rules. On 10 March 2026, the parties attended court, and the respondent’s counsel submitted that the claim is not in dispute and wanted to settle. The parties asked for more time to file a consent, which was allowed, and the matter was allocated to the mention date of 13 March 2026. On 24 March 2026, the respondent submitted that there were financial delays and needed more time. More time was allowed for payment and mentioned on 14 April 2026. Since there were no attendances or payments. Summons to attend was issued as addressed above. The instant application seeks to stay the summons and leave to amend the response to include new evidence. On leave to file an amended response, it is trite that the purpose of the amendment is to allow the matter to be litigated on merit. In **Nguruman Limited v Jan Bonde Nielson [2014] KEHC 1718 (KLR),** the court held that amendment of pleadings should not be for the purpose of deviating from or altering the character of the case. In **Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR),** the court emphasised that the object of amendment of pleadings is to enable the parties to make changes to their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the court's function more effective in determining the substantive merits of the case rather than holding it captive to the form of the action or proceedings. Thus, amendment to pleadings should be allowed to secure justice for the parties. The respondent asserts that it has since found previously unaccessed records confirming that the payments claimed by the claimant were paid to the deceased and that there was clearance. Such becomes crucial and relevant information for the consideration of the court in view of the Replying Affidavit by the respondent Jackson Mweni and the claims by the claimant that the estate of the deceased is owed Ksh. 6, 379,112.5. Although the claimant submitted that the matters addressed and sought to be addressed by the respondent were the subject of **Constitutional Petition No. 328 of 2016 filed by the Council of Governors against the Salaries and Remuneration Commission**, the cause of action herein is different. The claimant claims payment of house allowances to the deceased. Where such matter was addressed with finality in such constitutional petition before the High Court, these proceedings would be unnecessary. It is therefore imperative for the respondent to amend the response, produce the new evidence, and for the matter to proceed for hearing on merit. On this basis, the summons issued against the respondent's officers is hereby lifted to allow due process. However, the amendments sought shall be conditional. Previously, the respondent has not adhered to the timelines assigned by the court. The response shall be amended and filed within the next 14 days to allow the claimant a 14-day right of reply. **Accordingly, the application dated 6 June 2026 is allowed as prayed. Summons against the officers of the respondent herein is lifted. The respondent shall file and serve its response within 14 days, with the deadline closing on 31 August 2026. The claimant will have a right of reply within 14 days, by 22 September 2026. Where the respondent fails to comply, the claimant shall be at liberty to move the court as appropriate.** **Mention for hearing directions on 5 October 2026 before the Presiding Judge, Mombasa.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **…………………………………………… and …………………………………..………**