Francis Simiyu Tome v Bungoma County Assembly Service Board (CASB) & 2 others

2. The application originates from a judgment by this Court (Tuiyott, Omondi and Kimaru, JJ. A) delivered in Kisumu Civil Appeal No. E115 OF 2024 on 11th July 2025. The background to the appeal is that the appellant had approached the Employment and Labour Relations Court alleging unfair termination of employment, violation of constitutional rights and breach of contract. The Employment and Labour Relations Court found that the termination of the applicant’s employment was unfair and awarded him notice pay and compensation. The Court, however, declined to grant reinstatement or exemplary damages. The applicant being dissatised appealed against the judgment. 3. In the judgment of this Court on appeal, the Court armed the decision of the Employment and Labour Relations Court, Bungoma that found that the termination of the applicant’s employment was unfair, the awards of one month pay in lieu of notice and 12 months’ compensation. The Court also allowed the appeal for payment of all salaries withheld during the applicant’s interdiction; and set aside an order for costs of Kshs 150,000/- and directed that the costs be taxed. However, the Court declined to grant the applicant the remedies of reinstatement and exemplary damages, prompting the instant application. 4. The Motion is supported by grounds on its face and the applicant’s supporting adavit sworn on 21st July 2025. 5. The applicant led submissions and amended submissions both dated 7th December 2025. The respondents led submissions dated 15th December 2025. 6. The application was heard on 23rd July 2026. The applicant appeared in person. Learned counsel Mr Musumba appeared for the respondents. The Court took brief oral highlights of the parties’ submissions. The applicant’s case 7. The applicant identied in his supporting adavit to the application, two questions that he wanted us to certify as raising matters of general public importance and these were: i. Whether the denial of reinstatement based on selective or inconsistent application of section 49(4) of the Employment Act – without regard to the constitutional imperative of public accountability – undermines the rule of law, legal certainty and the right to equal protection under Article 27? ii. Whether the judicial discretion in awarding remedies in employment disputes must be exercised in conformity with constitutional values such as transparency, accountability, and equity, as enshrined in Articles 10 and 47 of the Constitution? 8. To advance the application, the applicant asserted that the High Court in R v Kibera Chief Magistrates Court & 6 Ors ex parte Francis Simiyu Tome (2022) eKLR quashed criminal charges brought against him; that thereafter he lodged a claim before the Employment and Labour Relations Court asserting unfair termination of employment; the Employment and Labour Relations Court found unfair termination of employment but declined to grant the remedies of reinstatement or exemplary damages, and that despite arming the nding that the termination of employment was unfair, this Court declined to grant reinstatement or exemplary damages and therefore validated administrative action founded on forged evidence thus violating the national values and rights to equality and fair administrative action. 9. While accepting that the grant of the remedies was an exercise of judicial discretion, the applicant urged that the failure to reconcile or consider the interplay between the remedies and the Articles 10, 27 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25 2

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and 47 of the Constitution in cases implicating termination of employment within the public sector required the guidance of the Supreme Court. 10. Citing Hassan Ali Joho & Ar v Suleiman Said Shabhal & 2 Ors (2014) eKLR, the applicant argued that the failure by this Court to consider the connection between the exercise of statutory judicial discretion under section 49(4) of the Employment Act and the national values of integrity, transparency and accountability, equality and fair labour practices, and the right to fair administrative action was of constitutional signicance and created a dangerous precedent that required the intervention of the Supreme Court. 11. To fortify the submissions, the applicant contended that the Employment and Labour Relations Court and this Court did not give much signicance to the quashing of the criminal charges against him by the High Court. 12. On the threshold to be met by an applicant seeking certication, the applicant referred to Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (2013) eKLR and Peter Oduor Ngoge v Francis Ole Kaparo & 5 Ors (2012) eKLR to underscore that the present case presented a matter of general public importance that raised a question of constraints on judicial discretion, a novel point of law. 13. The questions posed, the applicant asserted, drawing from Katiba Institute v Parliament of the Republic of Kenya & Ar (2025) KEHC 4609 (KLR), transcended the rights and interests of the parties herein. The respondents’ submissions 14. The County Assembly of Bungoma, the Speaker of the County Assembly and the Clerk of the County Assembly led submissions dated 15th December 2025. 15. The respondents contended in the submissions that the applicant had not met the test set out in the Hermanus Phillipus Steyn authority (supra) and Telkom Kenya Ltd v John O. Ochanda (suing on his behalf and on behalf of 996 former employees of Telkom Kenya Ltd (2014) KECA 634 (KLR) and the Ngoge case (supra) because the dispute that had risen through the judicial hierarchy related to the applicant’s private rights and interests, namely termination of an employment contract by a public institution and the grant of appropriate remedies if the termination was unfair; the issues raised did not transcend the rights and interests of the parties and that it was not the sole preserve of the Supreme Court to develop the law. 16. The respondents further contested the factual foundation to the application, on the grounds that the Employment and Labour Relations Court and this Court had not made a nding of forgery or misconduct against them (respondents). Analysis 17. We have considered the application, supporting adavit and parties’ submissions. Two issues project themselves for our consideration: "whether the applicant should be granted leave to appeal as of right pursuant to Article 163(4)(a) of the Constitution and whether the applicant has demonstrated sucient grounds to warrant certifying that the application raises matters of general public importance." 18. The rst issue does not require much discussion to be determined. 19. Article 163(4)(a) of the Constitution provides: Appeals shall lie from the Court of Appeal to the Supreme Court: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25 3

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SUBPARA a. as of right in any case involving the interpretation and application of this Constitution, and SUBPARA b. in any other case in which the Supreme Court, or the Court of Appeal, certies that a matter of general public importance is involved, subject to clause (5). 20. The jurisdiction under Article 163(4)(a) of the Constitution that an appeal heard and determined by this Court involves the interpretation and application of the Constitution and merits the attention of the Supreme Court lies with the Supreme Court, and not this Court. We need not say anything more. 21. On the second issue, the Supreme Court set out what constitutes a matter of general public importance in the Hermanus Phillipus Steyn case and Town Council of Awendo v Nelson Oduor Onyango & 13 Ors (2015) eKLR where it held inter alia that: “ for a case to be certied as one of general public importance, the applicant must show that the issue to be canvassed on appeal is one whose determination will transcend the circumstances of the particular case, and has a signicant bearing on the public interest; where the matter turns on the specic facts of the case, or on settled law, certication ought not to be granted and the point of law must be one of grave public concern, or one requiring the authoritative interpretation of this Court to eliminate uncertainty in the law; the questions of law must have been the subject of judicial determination in the courts below; mere apprehension of miscarriage of justice is not a proper basis for certication; determination of contested facts by themselves, are not a basis for certication, and that issues of controversy merging from transitional political-economic cum legal factors on rights and entitlements or public access to common utilities and services.” 22. The primary question posed by the applicant, and which he argues transcends the rights and interests of the parties is whether the Employment and Labour Relations Court and this Court exercised their judicial discretion within the scheme contemplated by the Constitution and more specically, the national values, equality, fair labour practices and fair administrative action. 23. The Employment and Labour Relations Court considered the applicant’s plea for the remedies of reinstatement and exemplary damages and gave reasons for declining to allow the prayers. The reasons included breakdown of the trust relationship expected between an employer and employee and the common law principle that specic performance can only be granted in exceptional circumstances, which was not demonstrated by the applicant. 24. This Court in arming the judgment of the Employment and Labour Relations Court observed that precedent suggested that reinstatement could only be allowed upon proof of the existence of exceptional circumstances in a particular case regardless of whether the contract of service was in the public or private sector. 25. This Court has addressed its mind to the question of reinstatement many times and considered the applicable factors in cases such as Kenya Airways Limited v Aviation Workers Union Kenya & 3 Ors (2014) eKLR, Co-Operative Bank of Kenya Ltd v Banking Insurance & Finance Union, Kenya Power & Lighting Co Ltd v Wasike (2017) KECA 446 (KLR), Judicial Service Commission v Ndururi (2021) KECA 365 (KLR), Nanyuki Water & Sewage Co Ltd v Benson Mwiti Ntiritu & 4 Ors (2018) KECA 196 (KLR), Kenya Tea Growers Association & Ar v Kenya Plantation and Agricultural Workers Union (2018) KECA 32 (KLR) and where it held that reinstatement is a discretionary remedy and the factors https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25 4

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set out in section 49(4) of the Employment Act must be considered on a case by case basis when faced with a prayer for reinstatement. The Court reiterated the common law principle that there should be no order of specic performance in a contract of service except in very exceptional circumstances. 26. In its judgment, this Court made specic reference to the exceptional circumstances, and noted that the trial court must set out the factors it considers exceptional in the particular case putting including the practicality of reinstatement, the common law doctrine that reinstatement or specic performance should not be granted except in very exceptional circumstances and a balance between the interests of employers and employees. The Court further noted that the remedy of reinstatement is a rarity and the mere fact that a termination of employment has been found to lack substantive and procedural rectitude is not sucient. 27. The place of reinstatement in cases where ndings of unfair termination of employment has been found has also been addressed by the Supreme Court in Kenfreight (EA) Ltd v Nguti (2019) KESC 79 (KLR) where the Court held: “Section 49 of the Employment Act provided for remedies for unfair termination of an employment contract. When giving an award, the court had discretion to determine what was fair under the circumstances. However, the court's discretion was to be based on the set parameters including the limiting of the award to a maximum of the equivalent of 12 months' salary.” ….. “The decision as to what would constitute an appropriate remedy was at the discretion of the court. Section 49 of the Employment Act listed several remedies that could be granted for unfair termination and it was up to the court to decide on whether to grant any or all of the remedies. It did not matter how the termination was done; section 49 would apply for purposes of determining the nature of the appropriate relief.” 28. To our mind, the question of reinstatement in employment law has now been settled in the authorities we have mentioned herein before including by the Supreme Court itself, and there is no lacuna or uncertainty requiring the intervention of the Supreme Court. 29. The applicant also faulted this Court for not awarding him exemplary damages. This Court addressed its mind to the appropriate cases to award exemplary damages in Godfrey Julius Ndumba Mbogori & Ar v Nairobi City County (2018) eKLR as follows: “Exemplary damages are essentially dierent from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a prot for himself which may well exceed the compensation payable to the plainti and iii) where exemplary damages are expressly authorized by statute” 30. And in PN Mashru Ltd v Ojenge (2023) KECA 473 (KLR), this Court reviewed the authorities on the award of exemplary damages and concluded that the same could only be granted where there was shown to be oppressive, arbitrary or unconstitutional action by servants of the government, and where the defendant’s action was calculated to procure him some benet at the expense of the plainti. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25 5

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31. In order to get exemplary damages, the applicant was expected to meet a certain threshold within the peculiar circumstances of his case. This Court held that the applicant had failed to meet the threshold. 32. The claim for the award of exemplary damages was personal to the applicant. It was not founded on any violation of a constitutional right. We cannot, therefore, fathom how the failure to award exemplary damages transcends the rights and interests of the applicant and the respondents to metamorphose into a matter of general public importance implicating Articles 10, 27 and 47 of the Constitution, since the mere invocation of constitutionally values in submissions, does not, without more transform an ordinary exercise of discretion into a matter of general public importance. 33. We nd that the questions proposed by the applicant do not meet the threshold. The dispute between the parties fundamentally revolved on whether the applicant merited the grant of the remedies of reinstatement and exemplary damages under the Employment Act, questions that this Court has addressed its mind to in numerous appeals and settled the law on, and which were dependant on the peculiar facts of his case. 34. The upshot of the above is that the application dated 21st July 2025 is dismissed with costs to the respondents. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA JUDGE OF APPEAL ........................................ R. NGETICH JUDGE OF APPEAL ........................................ RADIDO S. OKIYO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25 6

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