[2022] KEHC 1598 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

PETITION NO. E009 OF 2021

IN THE MATTER OF ARTICLES 10,27,28, 29(D), 41, 50, 232 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND

FREEDOMS UNDER ARTICLES 27, 28, 29(D), 41 AND 50 OF TE COPNSTITUTION OF KENYA

AND

AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2021(ACT NUMBNER 17 OF 2012)

AND

IN THE MATTER OF ILLEGAL STOPPAGE OF SALARY FOR THE PETITIONER

BETWEEN

WILSON MUNGAI...........................................................................................................PETITIONER

VERSUS

THE COUNTY SECRETARY, COUNTY GOVERNMENT OF NAKURU.....1ST RESPONDENT

COUNRT GOVERNMENT OF NAKURU...........................................................2ND RESPONDENT

NAKURU COUNTY PUBLIC SERVICE BOARD.............................................3RD RESPONDENT

RULING

1. This Ruling is an addendum to this Court’s Judgment delivered on 30th November, 2021 wherein this Court directed that the parties attempt an out of Court settlement of the matter.

2. The thinking of this Court was informed by my finding that the parties issues could be resolved by goodwill from either of them.

3. The claimant had indicated that he is not in office because he has no place to work from and he had been transferred to a department that does not need his services and so he has no work to perform.

4. The Respondent on their part indicated that the Petitioner is not in office and his whereabouts are not known.

5. The Petitioner having presented himself before this Court’s jurisdiction the Respondents cannot indicate that his whereabouts are unknown.

6. There is no indication that the Respondents have written to his counsel to avail him for work and he failed to appear. The Respondents position seems to be a defeatist way of avoiding the issues raised by the Petitioner.

7. As the Petitioner submitted, and the Respondents didn’t deny, the Respondents transferred the Petitioner to ICT department to settle in the same capacity.

8. The Petitioner indicated that his training is not in ICT and he had been appointed as Director Finance and there was no vacancy in ICT for Director of Finance.

9. Indeed it is true that the Petitioner had been appointed as Director Finance and the transfer to another department in same capacity was an attempt by the Respondent to terminate his services.

10. Section 10 (5) of the Employment Act 2007 states as follows;

(5) Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.

11. Modalities of the Petitioner working in ICT Department from being the Director of Finance were not viable in the circumstances. I find that the act of the Respondent transferring the Petitioner to ICT Department as Director Finance, was an act of futility, illegal and unfair.

12. I therefore find for Petitioner and order as follows;-

1. THAT a declaration is issued declaring the decision made by the Respondents to send the Petitioner on compulsory leave vide a letter Ret No. 19990019513/2 dated 28th August, 2017 and stopping his salary as unconstitutional and therefore unlawful on account of Violation of his fundamental rights guaranteed by the Constitution of Kenya.

2. THAT a declaration is issued declaring the decision made by the Respondents to stop the Petitioner's salary as unprocedural, irregular, unlawful actuated by malice and hence unconstitutional and therefore unlawful on account of violation of their fundamental rights guaranteed by the Constitution of Kenya.

3. THAT an order of Certiorari is issued for purposes of quashing the decision made by the Respondent to stop the Petitioner's salary.

4. THAT a declaration is issued declaring that Petitioner remains as the lawful holder of the positions of Director of Finance Management in the department of the County Treasury in the County government of Nakuru, the 2nd Respondent herein and be paid all his unpaid salaries to date.

5. An order is issued that the Petitioner be paid 2 million as damages for breach of his rights under the constitution.

6. Petitioner is expected to report to HR and be assigned work not later than 21/3/2022.

7. The Respondent will be paid costs of this suit plus interest at Court rates with effect from the date of this Judgment.

RULING DELIVERED VIRTUALLY THIS 15TH DAY OF MARCH, 2022

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:-

Kinuthia for Respondents – present

Gakinya for Petitioner - present