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ELRCDismissedPetition No. E003 of 2023

Emmanuel Maitha David & 7 others v The Governor, County Government of Kilifi & 2 others

Employment and Labour Relations Court of Kenya
29 September 2026
4,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a county worker's bid to keep her job past retirement age, but confirmed her terminal benefits claim remains open.

What this practically means

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Executive summary

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This ruling by Ocharo Kebira J of the Employment and Labour Relations Court at Malindi dismisses a Notice of Motion by the 3rd Petitioner, Eva Kafko Mnene, seeking injunctions to restrain the County Government of Kilifi respondents from terminating her employment and to maintain her employment status until her terminal benefits are calculated and paid. The underlying petition by 294 casual employees was compromised by a consent adopted as a court order on 30th September 2025, under which the respondents undertook to absorb the petitioners, pay arrears and accord them priority in recruitment; clause 6 provided that non-employable petitioners, including those past retirement age, would be 'handled separately'. The court framed three issues. First, the matters raised were not amenable to determination in a post-judgment application on affidavit evidence: the consent created no ascertained obligation capable of enforcement, and the contested factual questions - service history, whether the separation was termination or expiry of a fixed-term contract, alleged abscondment, and quantum of dues - required oral evidence tested by cross-examination. Second, the application was incompetent because the supporting affidavit was sworn by counsel for the petitioners, who deponed to contested matters of fact outside his personal knowledge, contrary to Order 19 rule 3(1) and settled authority including the Supreme Court's decision in Odinga v Ruto. Third, the orders sought were unavailable: the 3rd Petitioner had attained the mandatory retirement age of sixty under Section 80(1) of the Public Service Commission Act, 2017, and her contract had expired by effluxion of time on the date of filing, leaving nothing to restrain. The motion was dismissed with no order as to costs, the court expressly reserving the question of the 3rd Petitioner's entitlement, if any, to terminal dues.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the matters raised, and the reliefs sought, are amenable to determination in a post-judgment application on affidavit evidence
  2. 2.Whether the application is competent, regard being had to the affidavit upon which it is founded
  3. 3.Whether, in any event, the orders sought are available to the 3rd Petitioner

Key legal issues

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01

Amenability of the matters to determination in a post-judgment application on affidavit evidence

Holding

Not amenable; the petition was compromised by consent, clause 6 reserved rather than answered the question of dues for non-employable petitioners, and the claims raised hotly contested factual issues requiring oral evidence.

Reasoning

The suit was disposed of by consent adopted as a court order; only enforcement and interpretation remain. Clause 6 merely provided that non-employable petitioners would be 'handled separately', creating no ascertained obligation. The contested issues - service history, character of separation, abscondment, terminal dues - turn on credibility and must be litigated in a properly instituted claim.

p. 13
02

Competence of the application given the supporting affidavit sworn by counsel

Holding

The supporting affidavit was improperly sworn; counsel deponed to contested facts outside his personal knowledge, and the application stands without evidential foundation.

Reasoning

Order 19 rule 3(1) confines affidavits to facts the deponent can prove of own knowledge. Counsel's knowledge of the proceedings did not extend to the 3rd Petitioner's service history, the circumstances of her contract's end, or the Respondents' motives - the very contested matters he deponed to. The 3rd Petitioner's further affidavit neither adopted nor verified those depositions.

p. 20
03

Availability of the orders sought to the 3rd Petitioner

Holding

Unavailable: she had attained mandatory retirement age under Section 80(1) of the Public Service Commission Act, 2017; the contract had expired by effluxion of time; and the Court will not order a public body to retain an officer beyond retirement age.

Reasoning

Her identity card showed date of birth 24th March 1964, so she attained sixty in March 2024. Section 80(1) forbids extension of service beyond mandatory retirement age. The contract ran to 30th June 2026, the filing date, and had expired, leaving nothing to restrain. However, retirement does not extinguish lawful terminal dues, a question not before the Court.

p. 23

Legal principles established

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  • A concluded petition is not a platform for litigating fresh post-consent grievances by interlocutory motion; what remains is enforcement and interpretation of the consent.
  • Affidavit evidence is unsuitable where facts are hotly contested and resolution depends on credibility; such disputes must be tried on pleadings and oral evidence.
  • An advocate ought not to swear an affidavit deponing to contentious matters of fact in the party's cause.
  • An application resting on an improperly sworn affidavit stands without evidential foundation and cannot be sustained.
  • A court will not issue an order requiring a party to act in contravention of the law, nor issue orders in vain.

Court orders

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  1. 1.The 3rd Petitioner's Notice of Motion dated 30th June 2026 is hereby dismissed
  2. 2.Nothing in this Ruling shall be construed as a determination of the 3rd Petitioner's entitlement, if any, to terminal dues
  3. 3.There shall be no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22(1), 23(1), 23(3), 41(1), 258(1) and 259(1)(b) of the Constitution of Kenya, 2010

Relief refused

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Injunction restraining termination, alteration, review or change of the 3rd Petitioner's employment terms or contract

Application rests on an incompetent supporting affidavit; matters not amenable to determination on affidavit evidence; contract expired by effluxion of time; granting would compel retention beyond mandatory retirement age contrary to statute

p. 23

Injunction maintaining employment status until calculation and payment of terminal benefits

Overtaken by events - contract expired on the date of filing; no pending claim in aid of which interlocutory relief could issue

p. 23

Costs of the application

Justice best served by each party bearing its own costs

p. 24

Costs

There shall be no order as to costs; each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A concluded petition is not a standing platform upon which fresh grievances, arising after the consent and turning on new facts, may be litigated by way of interlocutory motion.
p. 12post-judgment applications
That is to seek final relief through an interlocutory door. The Court cannot countenance it.
p. 16interlocutory injunction as ancillary relief
It is not competent for a party's advocate to depone to evidentiary facts at any stage of the suit.
p. 17advocate swearing affidavits (quoting Ringera J in Kisya Investments)
An application that rests upon an incompetent affidavit stands without an evidential foundation. The application cannot be sustained.
p. 21effect of incompetent supporting affidavit
The 3rd Petitioner's Notice of Motion dated 30th June 2026 is hereby dismissed.
p. 24disposition
For the avoidance of doubt, nothing in this Ruling shall be construed as a determination of the 3rd Petitioner's entitlement, if any, to terminal dues.
p. 24disposition - reservation on terminal dues
There shall be no order as to costs.
p. 25costs

Issues in the judgment

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minor

Heading dates the motion 30th June 2026, the same date the contract expired and the application was filed; the introduction also refers to the consent as of 30th September 2025 while clause 6 is quoted without date conflict - dates internally consistent but the motion date coincides exactly with contract expiry.

minor

Respondents' Replying Affidavit and submissions give the 3rd Petitioner's year of birth as 1954, contradicting the exhibited identity card showing 1964; the court treats it as a slip.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emmanuel Maitha David & 7 others v The Governor, County Government of Kilifi & 2 others", Case Analysis (2026). Petition No. E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2740/eng@2026-09-29

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