Namayi v Public Service Commission & 3 others (Constitutional Petition E217 of 2025) [2026] KEELRC 2425 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for desertion, ruling that a worker who ignores recall to their parent employer can only claim pension actually earned.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner's dismissal on account of desertion of duty was substantively fair, lawful, reasonable and justifiable
- 2.Whether the requisite procedure was followed in the termination of the Petitioner's employment
- 3.Whether the conduct of the Respondents violated the Petitioner's constitutional rights and fundamental freedoms
- 4.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Whether the Petitioner deserted duty
Yes - he was aware of the recall and the decline of retention, yet took up a contract with the County without the employer's consent, showing no intention to return
The court found the petitioner was aware of the communication requiring him to return to the National Treasury and of the rejection of the retention request, but nonetheless willingly took up a three-year contract with the County Government of Busia without the employer's consent. That contract was not a secondment as it was issued independently of the parent employer, so his continued service with the County from the required reporting date constituted desertion.
Whether the dismissal was substantively and procedurally fair
Yes - the reason was valid and the disciplinary process, including a hearing before HRMAC, was faultless
The reason for dismissal (desertion) was valid. The petitioner responded to the show-cause letter, appeared before the Human Resource Management Advisory Committee, and was informed of his rights to representation and witnesses. The court found no fault with the disciplinary process and therefore dismissed the constitutional claims on fair hearing and fair administrative action.
Entitlement to terminal dues, pension and anticipatory wages
Only pension actually earned in service of the 1st Respondent is due, excluding the period under the illegal County contract; anticipatory wages refused
Relying on the Supreme Court decision in Ngokonyo v Telkom Kenya, the court held that permanent and pensionable employment does not guarantee tenure until retirement and that claims for anticipatory salaries lack statutory foundation. However, pension is a right accrued in service, so the Petitioner is entitled to his earned pension in the 1st Respondent's service, excluding the period under the County contract.
Legal principles established
#- Anticipatory or future salaries lack statutory foundation under the Employment Act and cannot be awarded
- Pension is a right of the employee accrued in service
- An officer who defies a recall to the parent employer and takes up a contract with another employer without consent is deemed to have deserted duty
Court orders
#- 1.Declaration that pension is a right of the employee accrued in service; the Petitioner is entitled to his earned pension in the service of the 1st Respondent save for the period he was illegally under contract with the 3rd Respondent
- 2.Dismissal of the Petition for lack of merit in respect of all other prayers
- 3.No order as to costs
- 4.File marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41, 47 and 23 of the Constitution (petition for violation of fundamental rights in employment)
Relief refused
#Declaration that the dismissal letter dated 20th August 2025 was unconstitutional, null and void
Court found the petitioner deserted employment and was fairly dismissed
Order of certiorari quashing the dismissal decision
Found desertion and fair dismissal
Mandamus to reinstate the Petitioner or deem him to have served until retirement with full salary, pension and benefits
Anticipatory wages have no statutory foundation
Mandamus for salary accrued from 20th August 2025
Followed Ngokonyo v Telkom Kenya on anticipatory salaries
Declaration that the disciplinary process violated Articles 47 and 48
Petitioner was heard before dismissal and no fault found in the process
Declaration that failure to determine appeal within reasonable time violated Article 47
No evidence of service of the appeal on the 1st and 2nd Respondents
Compensation under Article 23 for violation of rights
Disallowed on the court's findings on desertion and fair process
Costs
The court makes no order as to costs.
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.
The court discerned that the petitioner was aware of the communication to return to work, decline of retention, and willingly took up the contract without consent of the employer; thus had no intention to return. The court found a case of desertion.
The designation of employment as permanent and pensionable did not guarantee tenure until retirement age. Such contracts remained terminable, subject to the law and terms of service.
Claims for anticipatory salaries or future salary earnings lack a statutory foundation under both the repealed Employment Act and the current Employment Act (Cap 226).
The court finds that pension is a right of employee accrued in service.
The petitioner is entitled to his earned pension in service of the 1st respondent save for the period he was illegally under contract of the 3rd respondent.
The court makes no order as to costs.
Issues in the judgment
#Judgment misstates the deployment date as 2nd October 2024, contradicting the pleading record which states 29th October 2014
Respondent bodies are referred to inconsistently (the '1st respondent' is variously the issuing Commission and the parent Ministry/employer in the determination)
The final orders do not expressly itemise the prayer for terminal dues beyond the pension finding; only the pension entitlement is ordered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namayi v Public Service Commission & 3 others (Constitutional Petition E217 of 2025) [2026] KEELRC 2425 (KLR)", Case Analysis (2026). NBI ELRC Pet. No. E217 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2425/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.