Emmanuel Maitha David & 7 others v The Governor, County Government of Kilifi & 2 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the matters raised, and the reliefs sought, are amenable to determination in a post-judgment application on affidavit evidence
- 2.Whether the application is competent, regard being had to the affidavit upon which it is founded
- 3.Whether, in any event, the orders sought are available to the 3rd Petitioner
Key legal issues
#Amenability of the matters to determination in a post-judgment application on affidavit evidence
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.
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.
Competence of the application given the supporting affidavit sworn by counsel
The supporting affidavit was improperly sworn; counsel deponed to contested facts outside his personal knowledge, and the application stands without evidential foundation.
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.
Availability of the orders sought to the 3rd Petitioner
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.
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.
Legal principles established
#- 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
#- 1.The 3rd Petitioner's Notice of Motion dated 30th June 2026 is hereby dismissed
- 2.Nothing in this Ruling shall be construed as a determination of the 3rd Petitioner's entitlement, if any, to terminal dues
- 3.There shall be no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs of the application
Justice best served by each party bearing its own costs
Costs
There shall be no order as to costs; each party to bear its own 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.
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.
That is to seek final relief through an interlocutory door. The Court cannot countenance it.
It is not competent for a party's advocate to depone to evidentiary facts at any stage of the suit.
An application that rests upon an incompetent affidavit stands without an evidential foundation. The application cannot be sustained.
The 3rd Petitioner's Notice of Motion dated 30th June 2026 is hereby dismissed.
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.
There shall be no order as to costs.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.