https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1717

Telewa v Board, National Government Affirmative Action Fund & 10 others (Employment and Labour Relations Petition E006 of 2026) [2026] KEELRC 1717 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1717 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E006 of 2026 JW Keli, J June 19, 2026 IN THE MATTER OF: THE ALLEGED CONTRAVENTIONS OF ARTICLES 10, 41, 47, 50(1), 159, 165(3)(B) & (D), AND 258 OF THE CONSTITUTION OF KENYA, 2010; AND IN THE MATTER OF: REGULATIONS 8, 17 AND 17(5) OF THE PUBLIC FINANCE MANAGEMENT (NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND) REGULATIONS, 2016, PARTICULARLY; AND IN THE MATTER OF: THE ULTRA VIRES CONVENING AND DIRECTION OF THE NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND BOARD MEETING SCHEDULED FOR 13TH JANUARY 2026; AND IN THE MATTER OF: THE INTENDED AND/OR THREATENED REMOVAL FROM THE OFFICES OF CHIEF EXECUTIVE OFFICER AND SECRETARY TO THE BOARD OF THE NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND; AND IN THE MATTER OF: THE ABUSE OF EXECUTIVE AUTHORITY, USURPATION OF STATUTORY POWERS, AND UNLAWFUL INTERFERENCE WITH THE FUNCTIONS AND AUTONOMY OF THE NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND BOARD Between Roy Sasaka Telewa Petitioner and The Board, National Government Affirmative Action Fund 1st Respondent The Cabinet Secretary, State Department For Gender And Affirmative Action 2nd Respondent The Principal Secretary, State Department For Gender And Affirmative Action 3rd Respondent The Attorney-General 4th Respondent and Samson Ogolla 1st Contemnor Halima Daud 2nd Contemnor Bendera Wilson 3rd Contemnor Bernard Gibet 4th Contemnor Reuben Ekai 5th Contemnor Joyce Mugure 6th Contemnor Anne Wangombe 7th Contemnor Ruling 1.The petitioner filed application by way of Notice of Motion dated 13th January 2026 brought under the provisions of Section 5 of the Judicature Act, Sections 5 and 63 of the Civil Procedure Act, Order 40 Rule 3 of the Civil Procedure Rules, Section 57 of the Interpretation and General Provisions Act (Cap 2), Rule 17 of the Employment and Labour Relations Court and all other enabling provisions of the law for Orders:a.Spentb.Spentc.Spentd.Spente.That this Honourable Court be pleased to cite and hold the contemnors in contempt of court for deliberate, willful and mala fide disobedience of the lawful orders issued by Hon. Lady Justice Jemimah Wanza Keli on 13th January 2026.f.That the cited contemnors be declared unfit to hold public office for breach of Articles 10, 73, 75 and 232 of the Constitution, and that their names be forthwith transmitted to the Ethics and Anti-Corruption Commission, the Public Service Commission, and the State Corporations Advisory Committee for appropriate integrity, disciplinary and administrative action.g.That this Honourable Court be pleased to impose penal sanctions upon the contemnors for their wilful and contumacious disobedience of its orders, including committal to civil jail, the imposition of personal monetary fines, and the award of costs against them personally, so as to vindicate the authority and dignity of this Honourable Court.h.That costs of this Application be borne personally by the contemnors. Grounds of the application 2.That on 13th January 2026, this Honourable Court issued clear, unequivocal, binding and enforceable conservatory orders restraining the Respondents from convening or proceeding with any Board meeting, suspending or removing the Applicant, appointing any Acting Chief Executive Officer, or in any manner interfering with the Applicant’s tenure. 3.That service of the Court Orders was duly effected upon the 1st Contemnor, in his capacity as the Chairperson of the 1st Respondent, via his personal mobile telephone number +254713831220 on 13th January 2026 at 15:46 hours through the WhatsApp messaging platform, which message was successfully delivered and received, thereby conferring actual, direct and personal knowledge of the said Orders. 4.That a physical copy of the Court Order was duly served upon the 1 st Respondent at its offices at Absa Towers, Nairobi, on 13th January 2026 at 15:45 hours, while the cited contemnors, being members of the 1st Respondent and including the 3rd Respondent, were in attendance, and such service was acknowledged by affixing the official stamp of the 1st Respondent. 5.That the Court Orders were further and additionally served upon the Respondents by way of electronic mail through their respective official email addresses on 13th January 2026 at 16:24 hours, which service constituted proper, effective and sufficient service in law, thereby conferring actual, constructive and continuing notice of the said Orders upon the Respondents. 6.That notwithstanding proper service and actual knowledge of the orders of this Honourable Court, the 1st Contemnor, in his capacity as Chairperson of the Board of the 1st Respondent, wilfully and contumaciously proceeded to issue the Petitioner/Applicant with a letter of suspension dated 13th January 2026, which letter was deliberately transmitted via electronic mail at 20:34 hours, well outside official working hours and several hours after proper service of the Court Orders, thereby evidencing bad faith, stealth, and a calculated attempt to undermine and defeat the efficacy and authority of the said Orders. 7.That the said Court Orders were issued with a Penal Notice, expressly warning the Respondents and the cited contemnors of the penal consequences attendant upon any disobedience or non-compliance, further the WhatsApp message and electronic mail through which the Orders were served explicitly reiterated and drew attention to the said Penal Notice, further unequivocally notifying the Respondents that contempt of court proceedings would be instituted forthwith in the event of any breach, thereby conferring actual knowledge of the Orders, the consequences of disobedience, and the imminent enforcement thereof. 8.That the Respondents have not sought, obtained, nor attempted to seek any stay, review, clarification or setting aside of the orders of this Honourable Court, which orders therefore remain valid, subsisting and binding upon them. 9.That the impugned suspension is unlawful, unconstitutional, procedurally unfair, and null and void ab initio, having been imposed in violation of Articles 47 and 50(1) of the Constitution of Kenya, sections 4(1), 4(3) and 4(4) of the Fair Administrative Action Act, 2015, and the common law rules of natural justice. 10.That the suspension was effected without the issuance of a Notice to Show Cause, without disclosure of allegations or reasons, and without affording the Applicant an opportunity to respond or be heard, in breach of Article 47 of the Constitution, section 4(3)(a), (b), (c) and (d) of the Fair Administrative Action Act, 2015, and Regulations 57, 58, 59 and 66 of the Public Service Commission Regulations, 2020. 11.That the Respondents acted ultra vires and in excess of jurisdiction by imposing a punitive suspension of six (6) months prior to the lawful initiation or conclusion of any disciplinary proceedings, in contravention of Regulations 57–66 of the Public Service Commission Regulations, 2020, Clauses 1.5, 1.6 and 5.1 of the Mwongozo Code of Governance for State Corporations, sections 41, 43 and 45 of the Employment Act, 2007, and the constitutional principles of proportionality and legality under Article 47 of the Constitution of Kenya. 12.That the Respondents unlawfully relied on alleged investigations by the Ethics and Anti-Corruption Commission notwithstanding that no written summons, notice, statement recording, charge, or lawful recommendation has been issued against the Petitioner/Applicant, in breach of sections 26(1), 26(2), and 27 of the Ethics and Anti-Corruption Commission Act, 2011. 13.That the invocation of allegations of unexplained wealth was made in total disregard of the mandatory statutory framework under Part VIII of the Proceeds of Crime and Anti-Money Laundering Act, in particular sections 81, 82, 83, 90 and 92, which require formal notice, investigative engagement, and court-sanctioned proceedings, none of which have been commenced or concluded. 14.That the Respondents purported to rely on allegations of abuse of office, conflict of interest, and money laundering without issuing particulars, recording statements, or instituting lawful investigations, in breach of Articles 47 and 50(1) of the Constitution, sections 11, 42 and 43 of the Leadership and Integrity Act, 2012, and the rules of procedural fairness. 15.That the imposition of an immediate six-month suspension accompanied by total lockout from office, records, and systems is grossly disproportionate, punitive, and unreasonable, in violation of Article 47 of the Constitution, section 7(2)(a), (c), (i) and (k) of the Fair Administrative Action Act, 2015, and the doctrine of proportionality. 16.That the suspension letter dated 13th January 2026 constitutes an abuse of administrative power, is tainted with bad faith and improper purpose, and was calculated to undermine the Applicant’s tenure rather than to facilitate lawful investigations, contrary to Article 73(1)(a) and (2)(b) of the Constitution, section 7(2)(e) of the Fair Administrative Action Act, 2015, and Clause 1.6 of the Mwongozo Code of Governance. 17.That the continued exclusion, obstruction and lock-out of the Applicant from his office, systems, records and institutional access constitutes ongoing, aggravated and continuing contempt of court. 18.That any attempts to install Grace Wasike or any other person, under contrived, interim or cosmetic titles, amount to a deliberate stratagem to circumvent, subvert and render nugatory the authority and effectiveness of the orders of this Honourable Court. 19.That it is prima facie evident that the actions of the Respondents and the cited contemnors were and continue to be actuated by mala fides and form part of a sustained, deliberate and calculated onslaught against the Petitioner, aimed at removing him from office without justifiable cause and through the use of unlawful, improper and extraneous means. 20.That it is trite law that court orders are mandatory, binding and enforceable, not advisory or discretionary, and all administrative or executive authority must yield absolutely to a subsisting judicial command. 21.That the conduct of the cited contemnors discloses gross abuse of office, mala fides, and constitutional delinquency, in blatant violation of the standards of leadership, integrity and accountability prescribed for public officers. 22.That unless restrained and decisively sanctioned by this Honourable Court, the cited contemnors shall continue to occasion irreparable constitutional, professional and reputational harm to the Petitioner/Applicant, in violation of Articles 23 and 47 of the Constitution and in a manner that undermines the rule of law and erodes the authority, dignity and supervisory jurisdiction of this Honourable Court under Article 165(3)(b). 23.The applicant filed an affidavit sworn on the 13th January 2026 where he annexed supporting documents. 24.The application was opposed by the respondent vide grounds of opposition dated 17th March 2016 as follows- 25.That contempt of court applications are personal in nature and are quasi-criminal proceedings wherein the rights of alleged contemnors are the same as those of an accused persons in criminal proceedings because it may result in loss of personal liberty. 26.That the applicant never personally served the stated officers with any order of Mandamus and any reading of the supporting affidavit to the application for contempt sworn by one, Roy Sasaka Telewa would evince that he neither alleged nor proved any personal service of the same upon all the enlisted officers. 27.That it is illegal for one to be convicted and sentenced for contempt of court when there is no law describing the particulars of the offence and sentence upon conviction particularly when the alleged offence is not occasioned on the face of the Court. 28.That to the extent that there is no prescribed sentence for contempt of court a sentence meted by any court on the same would be unconstitutional as it would be against the provisions of Article 50 (p) which constitutionally entitles a person to the benefit of the least severe of the prescribed punishments for an offence. 29.That the 1st Respondent, in its Special Meeting on the Morning of 13th January, 2026, found itself under a legal and fiduciary obligation to act upon these recommendations from EACC. 30.That the Special Board Meeting commenced at 10:30 AM on the 13th January 2026. After, due deliberation, the 1st Respondent (Board NGAAF) resolved to suspend the Petitioner /Applicant and appointed an Acting CEO to ensure continuity of critical service. These resolutions were finalized and the meeting adjourned by 1300 hours. 31.That the conservatory issued by this Honourable Court reveals it was digitally signed and uploaded on 13th January, 2026 at 15;34;57 hours (3:34 PM) and physically served at 15: 45 hours at NGAAF Headquarters as evidenced by excerpt of the delivery note book.8. THAT by the time the court issued the said Order, the "impugned process" (the meeting and resolution to suspend) was already a completed act. The order sought to restrain a future event that had already occurred and concluded. 32.That the honourable Court cannot issue conservatory orders for events that have already taken place as was held in C.A. 366/1999 – Kenya National Examination Council vs. Republic, wherein it was held that prohibition cannot quash a decision already made; it can only prevent a contemplated decision. In the instance case, the decision had already been made. 33.That the 1st Respondent herein was only served with the Court Order on 13th January, 2026 at 15:45 hours, well after the suspension had been implemented. As a matter of law and fair administrative action, a party cannot be in contempt of an order that was not yet in existence or served at the time of the action. 34.That the Board's decision was made in good faith, in compliance with statutory obligations, and in the public interest. 35.That the instant Application by the Petitioner/Applicant is now spent and moot, as the court cannot restrain that which has already happened. The Petitioner's/Applicant's remedy, now lies in the substantive hearing of the Petition rather than seeking to stop a meeting that is now part of the historical record. 36.That the grounds stated on the face of the application does not support the issuance of the orders sought. 37.That the instant application is not meritorious. 38.The 1st contemnor also filed a replying affidavit dated 20th January 2026. Decision 39.The application was canvassed by way of written submissions. The parties complied. 40.The impugned order was issued by myself as duty judge during recess on the 13th January 2026 as follows: -' THIS MATTER coming up on 13th January 2026 for directions on the Notice of Motion dated 12th January 2026 before Honourable Justice J.W. Keli UPON perusal of the application in the absence of the parties IT IS HEREBY ORDERED:1.THAT the application is certified as urgent.2.That pending the hearing of this Application the Court is pleased to issue a temporary conservatory order restraining the Respondents, whether by themselves, their agents, servants, or persons acting under their authority, from convening, holding, proceeding with, or purporting to proceed with the 1st Respondent Board meeting scheduled for Tuesday, 13th January 2026, or any other meeting convened pursuant thereto or in furtherance of the impugned process.3.THAT pending the hearing of this Application and the court is further pleased to issue a temporary conservatory order restraining the Respondents whether by themselves, their agents, servants or any person acting under their authority, from suspending, removing, terminating or purporting to terminate the Petitioner’s contract of service; convening, directing, influencing or acting upon any Board meeting or process aimed at his removal; appointing or retaining any person in an acting or substantive capacity as Chief Executive Officer of the National Government Affirmative Action Fund; or in any other manner interfering with the Applicant’s lawful tenure and functions as Chief Executive Officer.4.THAT the application be served with this Order for response within 7 days.5.Hearing interpartes on the 21st January 2026. GIVEN under my hand and seal of the Honourable court this 13th January 2026 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.’ 41.The applicant asserts that service of the Court Orders was duly effected upon the 1 st Contemnor, in his capacity as the Chairperson of the 1st Respondent, via his personal mobile telephone number +254713831220 on 13th January 2026 at 15:46 hours through the WhatsApp messaging platform, which message was successfully delivered and received, thereby conferring actual, direct and personal knowledge of the said Orders. That a physical copy of the Court Order was duly served upon the 1st Respondent at its offices at Absa Towers, Nairobi, on 13th January 2026 at 15:45 hours, while the cited contemnors, being members of the 1 st Respondent and including the 3rd Respondent, were in attendance, and such service was acknowledged by affixing the official stamp of the 1st Respondent. That the Court Orders were further and additionally served upon the Respondents by way of electronic mail through their respective official email addresses on 13th January 2026 at 16:24 hours, which service constituted proper, effective and sufficient service in law, thereby conferring actual, constructive and continuing notice of the said Orders upon the Respondents. That notwithstanding proper service and actual knowledge of the orders of this Honourable Court, the 1st Contemnor, in his capacity as Chairperson of the Board of the 1st Respondent, wilfully and contumaciously proceeded to issue the Petitioner/Applicant with a letter of suspension dated 13th January 2026, which letter was deliberately transmitted via electronic mail at 20:34 hours, well outside official working hours and several hours after proper service of the Court Orders, thereby evidencing bad faith, stealth, and a calculated attempt to undermine and defeat the efficacy and authority of the said Orders. That the said Court Orders were issued with a Penal Notice, expressly warning the Respondents and the cited contemnors of the penal consequences attendant upon any disobedience or non-compliance, further the WhatsApp message and electronic mail through which the Orders were served explicitly reiterated and drew attention to the said Penal Notice, further unequivocally notifying the Respondents that contempt of court proceedings would be instituted forthwith in the event of any breach, thereby conferring actual knowledge of the Orders, the consequences of disobedience, and the imminent enforcement thereof. 42.The contemnors, on the other hand, contended that as at the time of publishing of the impugned order by the court on the Court Tracking System (CTS) at 15.35 pm, the 1st respondent had already met and made a decision on the suspension that same day. The 1st contemnor produced the minutes of the board dated 13th January 2025 at 10.30. The minutes indicate the meeting ended at 1.30 pm. On prima facie basis, it appears on the face of the minutes that the Order published at 15.35pm had been overtaken by the event of the decision of suspension. 43.The order sought in the application dated 12th January 2026 is of prohibition. The respondent urged that the order of prohibition was not available as a remedy, as the decision had already been made. The court was not aware of the decision as at the time of publishing the ex parte order. The order of prohibition is one of judicial review. The Court of appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) on the meaning and extent of the judicial review orders observed- ‘What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings….The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.’’ Applying the foregoing decision in the instant case, the decision to suspend from duty the applicant had already been made hours earlier before the publishing of the ex parte order. For the foregoing reason, there is no basis to grant the orders sought. The respondent cannot be held in contempt without proof of wilful /deliberate disobedience of court orders. The exparte order of prohibition cannot also stand, the decision of suspension having been made before the publishing of the impugned Order dated 13th January 2026 . In the upshot, the application dated 13th January 2026 is dismissed with costs in the cause. 44.Consequently, the Order dated 13th January 2026 cannot stand as it was made in error, the decision of the 1st respondent having been made hours before. The court discharges the Order dated 13th January 2026. This file has been referred to me by Justice Wasilwa under Court 7 under an order dated 23rd March 2026 for writing the ruling, having delivered the ruling, I transmit the file to the Division Presiding Judge(Court 7) for further directions on the 6th July 2026. 45.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.JEMIMAH KELI.JUDGEIn The Presence OfPetitioner- absentRespondents – Nyoike Advocate h/b Kioko Advocate