Ombati v Governor, Nyamira County & another (Cause E001 of 2025) [2025] KEELRC 1814 (KLR)
The bottom line
#Kenya's Employment Court dismissed a fired county health executive's case, finding his termination for allegedly misleading the Governor about drug deliveries was fair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the claim (and whether it is a plain vanilla employment dispute)
- 2.Whether this matter is res judicata given the prior Kisumu ELRC Petition No. E024 of 2023
- 3.Whether the termination of the Claimant's employment was substantively and procedurally fair
- 4.Whether the Claimant is entitled to the reliefs sought
- 5.Who should bear the costs of these proceedings
Key legal issues
#Jurisdiction of the ELRC over termination of a County Executive Committee Member
The ELRC has jurisdiction; the Kakamega Omweno decision concerned County Public Service Board members and is distinguishable
The court accepted the Claimant's submission that the termination of a CECM is an ordinary employer-employee dispute, that the CECM office is not a constitutional office, and that the Court of Appeal decision in Governor, County Government of Kakamega v Omweno related to appointment of County Public Service Board members and was distinguishable. It relied on County Government of Garissa v Idriss Aden Mukhtar holding the Employment Act applies to state officers, and found jurisdiction under section 12(1) of the ELR Act.
Res judicata
The matter is not res judicata; the prior petition was struck out, not heard and determined on the merits
The prior Kisumu ELRC Petition E024 of 2023 was struck out on the principle of constitutional avoidance, the court having viewed the issues as contractual rather than constitutional. A struck-out matter is distinguishable from a dismissed one and the issues, including the termination, were never heard and determined on merit, so the res judicata plea fails.
Whether the termination was substantively and procedurally fair
The court found there was justification for the termination, i.e. both substantive and procedural fairness
A notice to show cause was issued and a response given. The Claimant allegedly misled the Governor during commissioning of drugs that the entire consignment had been delivered. The court found the Claimant failed to draw a nexus between the Maandamano protests and the failed deliveries, and that subsequent delivery without loss did not exonerate him. It therefore found justification for the termination.
Entitlement to reliefs
The Claimant was not entitled to the reliefs sought
The Claimant had obtained a leave of absence from the Respondents and did not demonstrate non-payment of gratuity or salaries earned during his tenure. As the court found both substantive and procedural fairness, there was no basis to grant the reliefs for unfair termination, remainder of contract, or defamation.
Legal principles established
#- Although the employment of state officers is regulated by the Constitution and relevant statutes, the Employment Act applies to them unless the Constitution, relevant statute or their contract provides better terms
- A struck-out matter is not res judicata because it was not heard and determined on the merits
- Termination of a CECM is a plain vanilla employment dispute within ELRC jurisdiction, distinguishable from cases on County Public Service Board members
Court orders
#- 1.The suit is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12(1) of the Employment and Labour Relations Act
Relief refused
#Declaration that the Claimant's termination was unfair
The court found there was justification for the termination
Gratuity, one month's salary in lieu of notice, 12 months' compensation, payment for remainder of contract, gratuity for remainder of contract, general damages for defamation and Certificate of Service
Court found substantive and procedural fairness, and the Claimant had taken leave of absence from the Respondents and did not demonstrate non-payment of earned dues
Costs
No order as to costs, since the Respondents failed to participate
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That is difierent and distinguishable from the plain vanilla case of employment dispute between the County Executive Committee Member such as the Claimant herein.
The fact that the deliveries were subsequently made and no loss sufiered, there was no justification for the Claimant to assert he did not intentionally mislead the 1st Respondent. I thus find there was justification for the termination.
As the Court finds there was substantive and procedural fairness there is no justification to hold the termination was unlawful as such the suit is dismissed, albeit with no order as to costs since the Respondents have failed to participate.
For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
Issues in the judgment
#Case number and neutral citation of this judgment are not stated in the provided text; only the delivery date appears
The second Respondent is not individually named in the judgment as provided, which refers only to 'the Respondents' and 'the 1st Respondent'
Minor internal inconsistency in the judgment: the defence pleads 126 health facilities while the Claimant's averment refers to 129 facilities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombati v Governor, Nyamira County & another (Cause E001 of 2025) [2025] KEELRC 1814 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1814/eng@2025-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.