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ELRCAllowedPetition dated 17.02.2025 (ELRC, Nairobi)· [2025] KEELRC 750 (KLR)

Kinyili & another v Government of Makueni County; Ethics and Ant-Corruption Commission (Interested Party) (Constitutional Petition E003 of 2025) [2025] KEELRC 750 (KLR)

Employment and Labour Relations Court
13 March 2025
9,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that county governments cannot stop public officials' salaries without following due process and proving actual conflict of interest.

What this practically means

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Executive summary

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Two part-time members of the Makueni County Public Service Board, both full-time university lecturers, petitioned the ELRC after the County Government of Makueni, acting on an EACC recommendation, stopped their retainer and allowances and denied their requests for an extension of time to respond. They sought declarations that the stoppage violated Article 27, Article 47, Article 30(1) (servitude) and Article 41 (unfair labour practice), plus certiorari and mandamus. The respondent raised a preliminary objection on jurisdiction under Article 165(3), and argued the appointments breached section 58(3) of the County Governments Act and Article 77. The Court upheld its jurisdiction, holding the claim concerned enforcement of rights within a subsisting contract of service, distinguishable from the Omweno removal case, and deprecated swinging jurisdictional objections. On the merits, it held that 'gainful employment' under Article 77(1) bears the restrictive statutory meaning of work inherently incompatible with state office or creating a conflict of interest, and no such incompatibility was proved; the petitioners had disclosed their lectureships, were vetted and cleared, and the appointments were complete. The summary stoppage of pay without a fair opportunity to respond was unfair administrative action. Judgment was entered for the petitioners with declarations, certiorari quashing the stoppage, and mandamus reinstating payment until lawful termination, while directing that the initiated administrative process be concluded under the County Governments Act. Each party was to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over the petition

Holding

The Court has jurisdiction; the claim concerns enforcement of rights within a subsisting contract of service, and the ELRC may interpret and apply the Constitution in such appropriate cases

Reasoning

The Court distinguished the Omweno decision (which concerned removal of board members) because here the petitioners remain in office and seek remuneration flowing from a subsisting contract of service. Drawing on County Assembly of Kisumu and Kenya Tea Growers Association, the Court held the ELRC may enforce Bill of Rights and interpret the Constitution in disputes within its subject-matter jurisdiction, including remuneration and benefits. It also deprecated swinging jurisdictional objections.

p. 10
02

Meaning of 'gainful employment' under Article 77(1) and section 26 of the Leadership and Integrity Act

Holding

Gainful employment is work inherently incompatible with state office or impairing judgment or creating a conflict of interest; no such incompatibility or conflict was shown

Reasoning

The Court adopted the statutory definition and found that neither the respondent nor the interested party provided evidence that part-time CPSB service was incompatible with, or impaired, the petitioners' university duties. Alleged future conflicts with students were speculative matters for the initiated administrative process. Whether gainful employment exists is circumstantial and fact-specific.

p. 16
03

Fair administrative action and due process in stopping remuneration

Holding

The stoppage was unfair administrative action; the petitioners, duly appointed and serving, were entitled to due process under the County Governments Act before remuneration could be stopped

Reasoning

Although an administrative process was initiated following the EACC's recommendation, the petitioners were denied a fair opportunity to respond - the EACC letter was withheld until after the response deadline and extensions were refused. The Court held due procedure under the County Governments Act must be used to resolve the eligibility concerns, and quashed the summary stoppage by certiorari and ordered reinstatement of payment by mandamus.

p. 17
04

Effect of the petitioners' disclosure and the appointment process

Holding

The petitioners disclosed their university positions in their applications and CVs, were vetted and cleared including by the EACC, and the appointment was a completed decision; any eligibility issues must be resolved through the removal procedure in the County Governments Act

Reasoning

The Court found the advertisement did not state the section 58(3)(b) qualification that a member not be a state or public officer, and the petitioners' CVs disclosed their lectureships, discrediting the non-disclosure allegation. The EACC, which cleared the petitioners, curiously did not address its own role. The eligibility question is a matter for the prescribed removal provisions, not summary stoppage of pay.

p. 18

Legal principles established

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  • 'Gainful employment' under Article 77(1) bears the meaning in section 26(2) of the Leadership and Integrity Act - work inherently incompatible with state office, impairing judgment, or creating a conflict of interest - and whether it exists is circumstantial, determined case by case
  • Public and state officers are servants of the people and their disputes concerning remuneration, terms and conditions of service fall within the ELRC's jurisdiction

Court orders

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  1. 1.Declaration that the respondent's decision vide letters dated 29.01.2025 to stop the petitioners' salaries and allowances contravenes section 26(2) of the Leadership and Integrity Act and violates Article 27(1) and (2) of the Constitution
  2. 2.Declaration that the respondent's decision of 29.01.2025 declining to extend time for responses violated Article 47 of the Constitution
  3. 3.Declaration that stopping the petitioners' salaries sine die while they continue serving constitutes servitude contrary to Article 30(1) and an unfair labour practice contrary to Article 41(1) and (2)
  4. 4.Order of certiorari quashing the decision communicated vide letters dated 29.01.2025 to stop the petitioners' salaries and allowances
  5. 5.Order of mandamus directing the respondent to reinstate and continue paying the petitioners' retainer and allowances until the employment relationship is otherwise lawfully terminated per the County Governments Act
  6. 6.Declaration that the petitioners are entitled to due process, with the initiated administrative process to be concluded per the County Governments Act
  7. 7.Each party to bear own costs of the proceedings
  8. 8.The Deputy Registrar to return the case file to Machakos Sub-Registry forthwith
Jurisdiction invoked
Article 162(2)(a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act, 2011; Article 165(5)(b) ousting High Court jurisdiction over ELRC matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyili & another v Government of Makueni County; Ethics and Ant-Corruption Commission (Interested Party) (Constitutional Petition E003 of 2025) [2025] KEELRC 750 (KLR)", Case Analysis (2025). Petition dated 17.02.2025 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/750/eng@2025-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.