https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1286

Kiptalam v County Government of Kwale (Civil Appeal (Application) E118 of 2021) [2026] KECA 1286 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1286 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E118 of 2021 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Samuel Kipyator Kiptalam Applicant and The County Government of Kwale Respondent (Being an application for leave to lodge an appeal before the Supreme Court, and for stay of proceedings pending hearing and determination of the Judgment of the Court of Appeal at Mombasa (Gatembu, Laibuta & Ngenye, JJ.A.) dated 18{{^th}} July, 2025 in Civil Appeal No. E118 of 2021 Cause 95 of 2019 & E006 of 2021 (Consolidated) ) Ruling 1.By way of a Notice of Motion dated 30th July 2025, brought under Rules 41, 44, 45, 5 (2) (b) of the Court of Appeal Rules, 2022 as read with Articles 40, 50, 159, 162 and 163 of the Constitution, Sections 3, 15, 16, 21 and 24 of the Supreme Court Act, Cap. 9B, Rules 26, 31, 32 and 33 of the Supreme Court Rules, and all other enabling provisions of the law, the applicant, Samuel Kipyator Kiptalam, is seeking:“i.Spent;ii.That this Court be pleased to certify the appeal subject hereof as viable for determination before the Supreme Court and thereby grant unconditional leave to the respondent to lodge appeal to this Court against the decision of this Court (Gatembu, Laibuta & Ngenye, JJ.A.) rendered on 18th July 2025 in Mombasa Civil Appeal No. E118 of 2022. Consequently, the Notice of Appeal lodged in respect thereof on 25th July 2025 as well all attendant documentation be certified as properly filed.ii.That consequently, pending the hearing and determination of this application and/or appeal subject hereof, the Court be pleased to issue orders of unconditional stay or further (execution) proceedings in Mombasa Civil Appeal Case No. E118 of 2022: The County Government of Kwale vs Samuel Kipyator Kiptalam Mombasa ELRCC No. 95 of 2019 (Consolidated with Mombasa ELRCC No. E006 OF 2021) Samuel Kipyator Kiptalam vs The County Government of Kwale.ii.That costs or this application be provided for.” 2.The application is premised on the grounds set out on its face and an un-commissioned supporting affidavit of the applicant purported to have been deposed on even date. 3.An abridged background of the dispute giving rise to the instant application is that the applicant was employed by the National Government as a Registered Clinical Officer– Anaesthetist, under the Ministry of Health. He was later posted to the then Coast Province, Kwale District effective from 28th June 2001. Later, when the health function was devolved, the applicant was absorbed by the County Government of Kwale, the respondent. On 22nd May 2019, a dispute occurred on an alleged theft of a patient’s monitor at the Kwale sub-County Hospital under the applicant’s watch. On account of that, the applicant was transferred to Samburu sub-County Hospital on 10th June 2019, which the applicant declined resulting to his salary stoppage. 4.Aggrieved by his salary having been stopped, the applicant filed two suits, being ELRC Cause No. E006 of 2021 and ELRC Cause No. 95 of 2021, which were consolidated and heard together. In the end, the Employment and Labour Relations Court (the ELRC), in its judgement dated and delivered on 29th July 2022 (Ongaya, J.) awarded the applicant the withheld salaries in the sum of Kshs.4,536,170 less PAYE by 1st October 2022, failing which interest be payable thereon at court rates from date of judgement until payment in full. The applicant was also ordered to report to Samburu sub- County Hospital not later than 8th August 2022 with full pay of remuneration and other benefits. The court further issued a declaration that the deployment of the applicant to Samburu sub-County Hospital was regular and did not bar the applicant from raising a grievance about the alleged theft at the time of deployment; and the respondent was to pay 50% of the applicant’s costs of the suit. 5.The respondent was aggrieved by that decision and appealed to this Court, raising seven grounds of appeal in its Memorandum of Appeal dated 15th November 2022. The appeal was canvassed before this Court on 18th February 2025. After re-analysing the evidence on record, by a judgement delivered by this Court on 18th July 2025 (Gatembu, Laibuta & Ngenye, JJ.A.), the Court overturned the Judgment of the ELRC, thereby upholding the respondent’s actions of withholding the applicant’s salary as tabulated by the respondent. The applicant was ordered to bear the costs of the appeal. 6.In support of the instant application, the applicant justifies that the intended appeal to the Supreme Court involves a matter of point of law of general public importance on the ground of the need of the Supreme Court to pronounce itself with regard to the disciplinary mechanism availed by the County Governments to employees whose terms of service are under the Public Service Commission vis a vis the Disciplinary Mechanism provided within the public service by the Public Service Commission. In other words, to what extent can a County Government discipline public servants who were engaged in service by the National Government under Public Service Commission Act, Cap. 185? 7.Opposing the application, the respondent filed a replying affidavit dated 20th November 2025 deposed by Kisiwa Mohamed Koja, the respondent’s County Solicitor. It was deposed that the respective affidavits in support of the Certificate of Urgency and the application violate Section 5 of the Oaths and Statutory Declarations Act Cap 15, which provides that an affidavit must be signed by the deponent and be commissioned by a Commissioner for Oaths; that the said affidavits were neither signed by the applicant nor commissioned; and that the attempt to remedy this fatal defect by filing separate jurats which comply with the law but do not form part of the original affidavits filed, is untenable; and that, a stand-alone jurat could not cure a fatally defective affidavit; and that, as such, the application is incurably bad, incompetent and ought to be struck out in limine. 8.Counsel further deposed that the intended appeal to the Supreme Court does not raise any question of general public importance as the applicant’s case concerned personal employment grievances arising out of a private employment dispute, namely stoppage of salary and reinstatement to employment, which are essentially matters touching on employment rights specific to the applicant’s individual contract with the respondent; and that the attempt to elevate a private employment grievance to the status of a constitutional public importance matter is an afterthought aimed at re-litigating issues conclusively determined by this Court. We were thus urged to dismiss the application. 9.In a supplementary affidavit dated 22nd January 2026, the applicant stated that the failure to execute the afore-stated affidavits was an inadvertent omission on the part of the person who was designated to upload the documents; and that the executed part (jurats) of the affidavits were nonetheless also uploaded; and that the Court ought to overlook this inadvertence for the sake of doing justice. The applicant also reiterated the grounds upon which the application is premised, and accordingly prayed that the application be allowed. 10.We heard this application on 3rd February 2026. Learned counsel Mr. Ngonze appeared for the applicant while learned counsel Ms. Bwire was present for the respondent. Both Counsel confirmed filing their respective parties’ submissions, and relied on them entirely without any oral highlights. 11.Before we delve into the written submissions, we hasten to observe that, at the hearing, Mr. Ngonze abandoned the prayer seeking stay of execution or proceedings of this Court’s Judgment that is subject of the instant application. The applicant’s submissions which are inadvertently titled as the respondent’s submissions are dated 24th November 2025. We add that we are unable to consider the affidavit in support of the application for want of a jurat, which is a mandatory requirement under Section 5 of the Oaths and Statutory Declarations Act. 12.The applicant’s submissions have at length focussed on the background to the dispute. In addition, he submitted that he intends to argue before the Supreme Court the principles and disciplinary procedure under which a civil servant working for a county government should be subjected to. In this regard, reliance was placed on the decision of this Court in Pius Macha Isindu vs. Lavington Security Guards Limited (2017) KECA 225 (KLR) where this Court placed the burden to prove the reasons for termination on the employer.The applicant further made reference to the decision of the Supreme Court in Steyn vs. Ruscone (2013) KESC 11 (KLR) where the Court laid down the principles that constitute a matter of general public importance which would warrant certification for appeal to the Supreme Court. 13.The respondent’s submissions are dated 20th November 2025 by which it contended that the supporting affidavits violated Section 5 of the Oaths and Statutory Declarations Act for want of a signature and commissioning; that the omissions were not a mere procedural technicality curable under Article 159 (2) (d) of the Constitution as was held by this Court in John Mbogua Getao vs. Simon Parkoyiet Mokare, Karempu Kaata, Nkama Group Ranch, Chief Land Registrar & Attorney General (2017) KECA 156 (KLR) . (2012) KECA 259 (KLR) 14.It is the respondent’s submissions that, if this Court is to consider the merits of the application, it ought to find that the same is not merited as it fails the narrow and exceptional test for certification as provided under Article 163(4) (b) of the Constitution. In this regard, reference was made to the Supreme Court decision in Giovanni Gnecchi-Ruscone and Peter O. Ngoge vs. Francis Ole Kaparo & 3 Others (2012) KECA 6 (KLR) for the factors and principles to be considered for a matter to pass muster for certification for appeal to the Supreme Court; that such a matter must not simply challenge the correctness of the court’s findings or application of settled law; and that the issues that were canvassed in the trial court and on appeal in this Court related to stoppage of salary and reinstatement back into employment, which are private in nature and do not therefore raise broad constitutional, governance or jurisprudential issues. 15.The respondent submitted that the applicant only seeks to re-open factual findings and legal determinations already settled by both courts; that the Supreme Court cannot be a third appellate tier for ordinary grievances; and that, as a consequence, the application ought to be dismissed with costs. 16.We have considered the application, the supplementary affidavit, the respective parties’ submissions, the authorities cited and the law. The singular issue that commends itself for our determination is whether the application meets the threshold for certification to appeal to the Supreme Court pursuant to Article 163(4) (b) of the Constitution. 17.A litigant aggrieved by the decision of this Court, has, as a matter of right, to appeal to the Supreme Court in an instance where the case involves the application and interpretation of the Constitution, and in a matter where it is certified that the appeal involves a matter of general public importance. Article 163(4) of the Constitution makes this provision as follows:Appeals shall lie from the Court of Appeal to the Supreme Court-a.as of right in any case involving the interpretation or application of this Constitution; andb.in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5). 18.On what constitutes a matter of general public importance, the Supreme Court in Steyn vs. Ruscone (supra), set out the principles as follows:i.for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163(4)(b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court. 19.In Koinange Investment & Development Ltd vs. Robert Nelson Ngethe (2013) KECA 380 (KLR), this Court re-stated the governing principle in respect of appeals to the Supreme Court in the following words:“……the requirement for certification under Article 163 (4)(b) is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court, as the role of the Supreme Court, as was observed in R. v. Secretary of State, exparte Eastway [2001]1 All E.R. 27 at p.33 [para.(b) – per Lord Bingham], cannot be relegated to deal with correction of errors in the application of settled law, even where such are shown to exist.” 20.In the same vein, this Court in Memphis Limited vs. Kenya Ports Authority (2022) KECA 105 (KLR) also espoused on what may be viewed as a matter of general public importance as follows:“18. …For leave to appeal to be granted, the applicant needs to demonstrate that the points of law are ’of general importance the determination of which will substantially affect the rights of one or more of the parties.’19.The Act does not however provide direction on what may be considered to be ‘of general importance’. We think what the Supreme Court of Kenya stated in Hermanus Phillipus Steyn vs. Giovanni Gnecchi- Ruscone [2013] eKLR, though in the context of certification under Article 163(4) (b) of the Constitution, does provide guidance in interpreting the words ‘of general importance’ under Section 39(3) (b) of the Act. In that case, the Supreme Court stated thus:“Before this Court, “a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad- based, transcending the litigation- interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.” 21.We have understood the applicant to say that what he is seeking to be considered by the Supreme Court as a matter of general public importance is, a determination on the disciplinary mechanisms that should be undertaken by a devolved government against an employee who was engaged in service as a civil servant, of which he is one, by the Public Service Commission. In our view, what was raised in both the ELRC and this Court on appeal, was based on an employer- employee relationship arising out of a contract of employment. A contract of employment binds the parties therein, and each party is expected to perform their part of the bargain. Once one party is in breach thereof, it is obvious that consequences must follow. 22.In this instance, the applicant was found to be in breach of the terms of the employment contract as was outlined in the applicable Human Resource Manual. Being in the medical field and in particular working in the theatre, a critical department, and as an Anaesthetist, the applicant was obligated to perform his duties with fidelity and utmost dedication. Once he breached the terms of his service, nothing stopped the respondent from taking disciplinary action against him. This is the ordinary cause of action that ensues in such circumstances in employment relationships. There is nothing to suggest that disciplinary issues in the context of employment transcend the parties involved, so as to qualify them to be matters of general public importance. There is nothing novel in the manner in which [the] disciplinary mechanism(s) was undertaken or, are undertaken in the public sector against public officers requiring escalating the matter to the Supreme Court. 23.In the result, we find that the Notice of Motion dated 30th July 2025 lacks merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR...............................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR