Brian Ochieng & 293 Others v Siaya County Public Service Board & 2 others

BRIAN OCHIENG & 293 OTHERS…..……………. ……….PETITIONERS VERSUS SIAYA COUNTY PUBLIC SERVICE BOARD.........…..…...........................................1ST RESPONDENT COUNTY GOVERNMENT OF SIAYA............................... ………………….....................2ND RESPONDENT COUNTY SECRETARY, SIAYA COUNTY.………..…3RD RESPONDENT JUDGMENT 1. Vide a Petition dated 9th January 2026, the Petitioners have moved this court seeking the following reliefs: (i) A declaration that the 3rd Respondent acted ultra vires, illegally and unconstitutionally in purporting to terminate their employment; (ii) A declaration that the purported termination was unlawful, null and void ab initio; (iii) A declaration that their constitutional rights under Articles 10, 27, 28, 30, 35, 41 and 47 of the Constitution have been violated; Page 2 of 25

page 2 of 25

(iv) An order of pronouncement Certiorari of quashing the unlawful and all its termination and their dismissal suspending their consequences; (v) An order protecting their employment; (vi) An order of mandamus compelling the Respondents to reinstate them to their positions and pay all withheld salaries, benefits and dues from the date of appointment to the date of payment; (vii) A declaration that the 3rd Respondent has usurped powers of the County Public Service Board under section 59 of the County Governments Act; (viii) A declaration that there is no lawful decision by the County Public Service Board capable of being appealed and that they remain lawful employees of the 1st Respondent; (ix) An order directing the Respondents to pay them unpaid salaries amounting to Kshs. 149,974,984/-, together with interest from the date of filing till payment in full; Page 3 of 25

page 3 of 25

(x) A declaration that the Respondent has contravened the national values of adhering to the rule of law doctrine as mandated by Article 10 of the Constitution; (xi) Damages equivalent to twelve (12) months salary for unfair and unlawful termination; (xii) A permanent injunction restraining the Respondent from breaching the Contracts of employment made with the Petitioners; (xiii) An Order do issue for reinstatement of the petitioners to their respective positions without loss of salaries, benefits or seniority; (xiv) In the alternative to reinstatement, an order for payment of their statutory dues; (xv) Compensation and/or damages for violation of their Constitutional rights; (xvi) Costs of the Petition; and (xvii) Any other relief the court may deem fit to grant. 2. They contend that they were health workers employed by the 1st Respondent, in various cadres, as nurses, clinical officers, doctors, public health officers and administrative Page 4 of 25

page 4 of 25

staff. They appointment, state that they deployment were and issued posting with letters offer, between August 2023 and April 2025. Upon reporting to their respective workstations in various health centres, they were included in duty rosters, signed attendance registers and participated in verification and data-collection exercises undertaken by the Respondents. Despite this, they contend that their salaries remained unpaid for more than 8 months notwithstanding repeated requests, including through threatened industrial action. Instead of addressing the issue of unpaid salaries, the Petitioners contend that the 3rd Respondent, at a public baraza on or about 11th September 2025, purported to dismiss them and labelled them “ghost workers. 3. According to the Petitioners that pronouncement was arbitrary, unlawful and unprocedural, having been made without notice, written communication, reasons or an opportunity to be heard. They further contend that the 3rd Respondent had no statutory or constitutional authority to appoint, discipline or terminate employees of the County Page 5 of 25

page 5 of 25

Public Service, which functions, they assert, are vested in the 1st Respondent under Article 235 of the Constitution and section 59 of the County Governments Act. They therefore contend that the withholding of their salaries and their continued exposure to degrading working conditions without remuneration violated their rights under Articles 27, 28, 30, 41 and 47 of the Constitution. As concerns their failure to adhere to the exhaustion doctrine, their case is that no decision capable of appeal exist because the 1st Respondent has never issued termination notices. 4. The Petition is opposed by the Respondents. In a Replying Affidavit sworn by Mr. Wilfred Nyagudi, the Acting Chief Executive Officer of the 1st Respondent, it is contended that the Petition is frivolous, misleading, incompetent, misconceived and an abuse of the process of the Court. The Respondents maintain that the Petitioners were never employed by them and that the alleged employment letters and related documents are forgeries. They further state that no recruitment was undertaken in respect of the Petitioners and that their names do not appear in the Respondents' Page 6 of 25

page 6 of 25

employment records, staff establishment or human resource database. With respect to the employment letters and related documents annexed to the Petition, the Respondents contend that the issue was reported to the police at Siaya vide OB No. 41/04/07/2025. On that basis, the Respondents urge the Court to dismiss the Petition, contending that the Petitioners have approached the Court with unclean hands and that the Petition discloses no reasonable cause of action against them. 5. The Petition was canvassed by way of written submissions. Petitioners’ Submissions 6. In support of the Petition the Petitioners identify the following issues for determination namely: (a) Whether this court has jurisdiction; (b) Whether the Petition contravenes the exhaustion doctrine; (c) Whether there existed an employer- employee relationship between them and the Respondents; (d) Whether the termination of their employment was lawful; Page 7 of 25

page 7 of 25

(e) Whether the 3rd Respondent’s actions were ultra vires; (f) Whether their constitutional rights were violated; and (g) Whether they are entitled to the reliefs sought. 7. On jurisdiction the Petitioners submit that this Court is clothed with the same pursuant to Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, as the alleged violations arise from their employment with the 2nd Respondent. They rely on Attorney General & 2 others v Okiya Omtatah & 14 others [2020] KECA 30 (KLR), where the Court held that the ELRC has jurisdiction to interpret and apply the Constitution in the context of employment and labour relations disputes. They further rely on Daniel Maingi Muchiri v Jubilee Insurance Company Limited, [2017] KECA 114 (KLR), where the Court of Appeal affirmed that the ELRC has jurisdiction to redress constitutional violations arising in matters falling within its jurisdiction. Page 8 of 25

page 8 of 25

8. As concerns the exhaustion doctrine, the Petitioners submit that although Article 159(2)(c) of the Constitution recognises alternative dispute-resolution mechanisms, the doctrine is not absolute. They assert that exceptions arise where constitutional rights are violated, or where the alternative forum lacks jurisdiction or competence. They maintain that this suit falls under the exceptions, because they initially appealed to the 1st Respondent, the Siaya County Public Service Board, but no action was taken. Moreover, they contend that the constitutional violations are continuing and assert that the 1st Respondent lacks jurisdiction to grant the constitutional remedies sought. In support of their position, they rely on Chief Justice & President of the Supreme Court & another v Bryan Madila Khaemba [2021] eKLR, Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, Nicholas v Attorney General & 7 others, [2023] KESC 113 (KLR), and Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR, in which the common thread was that courts may intervene where fundamental rights are threatened or where the alternative Page 9 of 25

page 9 of 25

forum lacks jurisdiction. They further rely on Republic v Institute of Certified Public Accountants of Kenya ex parte Vipichandra Bhatt t/a J. V. Bhatt & Company [2008] eKLR, for the proposition that statutory power cannot be exercised arbitrarily, capriciously or in bad faith. The Petitioners contend that the their continued exclusion from the recruitment process, coupled with the withholding of their termination letters and employment information, constitutes continuing violations of Articles 27, 35, 41 and 47 of the Constitution. 9. With regard to continued discrimination the Petitioners submit that excluding them from recruitment while advertising their positions amounted to differential treatment contrary to Article 27 and that public bodies must act reasonably, lawfully and objectively when differentiating between persons. They draw attention to the 1st Respondent’s advertisement at page 357- 365 of their bundle of documents which bars them from the recruitment process. In support of this position, they rely on: Law Society of Kenya v Attorney General & 2 others [2019] Page 10 of 25

page 10 of 25

eKLR, which underscored that Article 27 prohibits arbitrary differentiation and requires that any distinction made by a public body must be reasonable, lawful and objectively justifiable; Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR, in which the court emphasized on equality as a foundational value of the Constitution and stressed that public bodies must demonstrate that differential treatment pursues a legitimate governmental objective and is proportionate; and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, which emphasized that Article 10 values, including equity, equality and human dignity, bind every State organ whenever it exercises public power. 10. As concerns access to information, they submit that the Respondents’ failure to provide termination letters, employment records and salary information has impeded their ability to challenge the decision to terminate their employment and therefore constitutes a continuing violation of Article 35. They rely on Nairobi Law Monthly Company Page 11 of 25

page 11 of 25

Limited v Kenya Electricity Generating Company & 2 others [2013] eKLR, in which the court underscored the indispensability of access to information in enforcing other Constitutional rights, and Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, where it was held that state organs cannot arbitrarily withhold information necessary for enforcement of citizens’ rights. The Petitioners further maintain that, having been appointed and permitted to discharge their duties, they acquired a legitimate expectation that their employment would be governed by the Constitution, the Employment Act and the County Governments Act. They also contend that they had a legitimate expectation that the County Public Service Board would undertake any disciplinary process in accordance with due process. To buttress this position, they rely on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, where the Supreme Court held that legitimate expectation arises where a public authority, by representation or established practice, creates an expectation that it will act in particular manner. Reliance is also placed on Keroche Page 12 of 25

page 12 of 25

Industries Limited v Kenya Revenue Authority & 5 others [2007] authorities eKLR, cannot for the arbitrarily argument depart that from public established procedures where citizens have relied upon them. 11. With regards to their dismissal by the 3rd Respondent, they submit that he usurped the 1st Respondent’s powers. They rely on Joseph Kareko Gikonyo v County Government of Lamu & 2 others [2022] KEELRC 166 (KLR), where the Court held that the County Secretary does not possess powers reserved for the County Public Service Board under section 59 of the County Governments Act. 12. On whether their existed an employer- employee relationship, the notwithstanding the Petitioners absence submit of formal that it did employment numbers. They contend that they were formally recruited, issued with deployment, arrival and appointment documents and leave forms, assigned workstations and duties, and participated in official meetings, as demonstrated by pages 1–187, 196 and 212–214 of their bundle of documents. They further contend that they worked under the supervision and Page 13 of 25

page 13 of 25

control of the Respondents, as demonstrated by pages 217– 295, and that the Respondents acknowledged delays in payment of their salaries. They therefore urge the Court to consider the substance and reality of the relationship rather than merely its formal documentation. In support, they rely on Everret Aviation Limited v Kenya Revenue Authority [2013] eKLR and Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 on the indicia of employment, including mutuality of obligation, control and integration. Additional reliance is placed on Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd [2014] eKLR, where the court held that actual performance of work creates enforceable employment rights, even in the absence of formal documentation; Nakuru Water & Sanitation Services Co. Ltd v Benson Wanjau Njau [2015] eKLR, in which the court affirmed that once an employee renders services the employer is obligated to pay; and Kenya Hotels and Allied Workers Union v Alfajiri Villas [2014] KEELRC 860 (KLR) for the proposition that an employment relationship may be inferred from conduct. Page 14 of 25

page 14 of 25

13. In response to the Respondents’ reliance on an OB extract, the Petitioners submit that the Respondents have not demonstrated any outcome of internal or administrative investigations to justify the report. They assert that the extract merely establishes that a report was made but does not prove the truth of the allegations recorded therein. They rely on Samson Mulyungi Kimuli v Kibuchi J. Irengi [2019] KEHC 11942 (KLR) for the proposition that a police abstract is evidence of a report having been made, rather than proof of the underlying occurrence. 14. Turning to the lawfulness of their termination, the Petitioners submit that their purported termination was unlawful, null and void. They contend that the verbal termination allegedly made by the 3rd Respondent at a public baraza, coupled with non-payment of salary and the absence of notice or a hearing, violated Articles 28 and 41 of the Constitution. They highlight sections 41 and 45 of the Employment Act, submitting that an employer must establish both a valid and fair reason for termination and compliance with procedural safeguards. They further rely on Walter Page 15 of 25

page 15 of 25

Ogal Anuro v Teachers Service Commission [2013] eKLR and Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR, both of which underscored the importance of both the substantive and procedural fairness test. Flowing from the foregoing the Petitioners submit that the Respondents failed to provide reasons for the termination and thereby violated Article 47. They rely on Dry Associates Limited v Capital Markets Authority & another [2012] eKLR for the proposition that failure to give reasons renders administrative action invalid. 15. Concerning, constitutional violation of their rights, the Petitioners submit that the Respondents violated Articles 27, 28, 35, 41, 47 and 50 of the Constitution. They contend that non-payment of wages after services had been rendered violated their rights to fair labour practices and dignity; that public termination without due process was degrading; and that withholding termination letters and other employment information violated Article 35. They draw attention to the fact that they worked for more than eight months without pay, in violation of Articles 28, 30 and 41 of the Constitution. They rely on Elizabeth Washeke & 62 others v Airtel Page 16 of 25

page 16 of 25

Networks (K) Ltd [2013] eKLR and Kenya County Government Workers Government [2017] Union eKLR, for v Wajir County the argument that withholding of wages violates an employee’s rights. 16. On entitlement to the reliefs, the Petitioners submit that they are entitled to payment of all outstanding salary arrears for services rendered. They rely on Kenya Union of Clinical Officers v County Government of Vihiga & others [2023] KEELRC 1343 (KLR), where the Court directed reconciliation and payment of salary arrears in respect of employees who had worked without remuneration. They further rely on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, in which the Court of Appeal affirmed court’s rights to award appropriate reliefs including damages in cases of breach of fundamental rights. 17. As for compensation, they urge the court to award the maximum 12 months salary award, contending that the termination was both procedurally and substantively unfair, that they were deprived of their source of livelihood and were occasioned financial hardship, emotional distress and Page 17 of 25

page 17 of 25

loss of future employment prospects. They further seek one month’s salary in lieu of notice under sections 35 and 36 of the Employment Act, relying on CMC Aviation Limited v Mohammed Noor [2015] KECA 775 (KLR), where the Court of Appeal held that an employee is entitled to salary in lieu of notice when notice is not issued. 18. With respect to accrued but untaken annual leave, the Petitioners submit that they are entitled to the same as their employment was terminated before their accrued leave was utilized. They therefore urge the court to direct the Deputy Registrar to reconcile the salary and other arrears due to each Petitioner within 30 days, as was done in Kenya Union of Clinical Officers v County Government of Vihiga & others [2023] KEELRC 1343 (KLR)where the court was also dealing with numerous Petitioners. 19. On general damages they assert that they are entitled to the same given the violation of their rights. They rely on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the court underscored that damages do not merely compensate the victim Page 18 of 25 but vindicates the

page 18 of 25

Constitution and deters future violations. The Petitioners further urge the court to reinstate them asserting that they are willing to continue serving maintaining that they did not voluntarily resign. 20. On costs, the Petitioners submit that they are entitled to costs under section 12(4) of the Employment and Labour Relations Court Act. They rely on Kenya Union of Clinical Officers v County Government of Vihiga & others (supra) which awarded costs to successful claimants, and President of the Republic of South Africa & others v Gauteng Lions Rugby Union & another [2001] ZACC 5, 2002 (1) BCLR 1 (CC) for the principle that party-and-party costs serve to indemnify a successful litigant for expenses incurred in enforcing their rights. In conclusion the Petitioners urge the court to allow the Petition. Respondents’ Submissions 21. On their part the Respondents assert that the issues arising for determination are: (a) whether the Petitioners have established the existence of a lawful employer-employee relationship with the Respondents; Page 19 of 25

page 19 of 25

(b) whether the Petition is barred by the doctrine of exhaustion of alternative remedies; and (c) whether the Petitioners are entitled to the reliefs sought. 22. On the existence of an employment relationship, the Respondents reiterate that no employer-employee relationship existed between them and the Petitioners. They contend that the documents relied upon by the Petitioners are forgeries and that the Petitioners have failed to demonstrate how their alleged employment came about. They point out that the matter was reported to the police and submit that, although an employer ordinarily bears the responsibility of documenting an employment relationship, that burden may shift to the employee where the employer disputes the authenticity of the employment documents. In support, they rely on Casmir Nyankuru Mwakikar Limited [2026] Agencies Nyaberi eKLR. v The Respondents further maintain that they neither sanctioned nor participated in any recruitment involving the Petitioners. They contend that the Petitioners have likewise failed to Page 20 of 25

page 20 of 25

demonstrate the process through which they were selected and engaged, notwithstanding their reliance on purported letters of employment and deployment. They rely on Wachira v Mbote & another [2022] KEELRC 12992 (KLR), which, citing Samuel Wambugu Ndirangu v 2NK Sacco Society Limited employer-employee [2019] relationship eKLR, held that an may be established through, among other things, the selection and engagement of an employee, payment of wages, the power of dismissal and control over the employee's conduct. On that basis, the Respondents contend that the allegedly fraudulent documents cannot found a lawful employment relationship. They further rely on Musua v Nairobi City County [2023] eKLR, where the Court found that no legitimate employment contract existed where the purported recruiting officers lacked authority to undertake the recruitment. 23. On the doctrine of exhaustion, the Respondents submit that, even if the Court were to find that an employment relationship existed, the Petition would nevertheless offend the exhaustion doctrine. They contend that the Petitioners Page 21 of 25

page 21 of 25

failed to comply with the mandatory provisions of section 77 of the County Governments Act and section 85 of the Public Service Commission Act. They rely on Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, where the Court of Appeal held that, where an alternative dispute-resolution mechanism exists outside the courts, it should ordinarily be exhausted before judicial intervention is sought. They also rely on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, for the principle that where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a particular grievance, that procedure ought to be followed. The Respondents further urge the Court to take judicial notice of its previous pronouncement on the same issue in Kisumu ELRC Misc. E068 of 2025, involving the same parties. 24. Finally, on the reliefs sought, the Respondents submit that the Petitioners are not entitled to any of them because they were never employees of the Respondents and, consequently, could not have been terminated. They reiterate that the purported employment and deployment Page 22 of 25

page 22 of 25

letters are not genuine and refer to the police report and OB extract annexed to the Replying Affidavit. They further contend that the Petitioners have failed to demonstrate any lawful recruitment process pursuant to which they were allegedly employed and have, consequently, failed to establish the foundational employer-employee relationship necessary to sustain their claims. In the circumstances, the Respondents urge the Court to dismiss the Petition with costs for want of merit. Disposition 25. The Petition seeks the interposition of the Court in what is said to be an employment dispute. The Petitioners seek a slew of reliefs inter alia that the 3rd Respondent acted ultra vires, illegally and unconstitutionally in purporting to terminate their employment. Consequently the Petitioners crave a declaration that the purported termination was unlawful, null and void ab initio. They require a declaration that their constitutional rights under Articles 10, 27, 28, 30, 35, 41 and 47 of the Constitution have been violated and an order of Certiorari quashing the unlawful pronouncement of Page 23 of 25

page 23 of 25

their dismissal and all its consequences. The Petitioners seek an order suspending their termination and protecting their employment. In the penultimate, they seek an order directing the Respondents to pay them unpaid salaries amounting to Kshs. 149,974,984/- as well as costs of the Petition. 26. The Respondents are the administrators of the County of Siaya. The Respondents are said to have terminated the employment of the Petitioners without cause. The Petitioners assert there was a summary dismissal on 11 th September 2025. The assertion is that there were ghost workers in the County. Evidence of the exercises to verify the staff are indicated as including the collection of UPN data in relation to staff employed by the County of Siaya. 27. There was a job advertisement in January 2026. The Petitioners have not indicated whether they applied after the termination meted out in September 2025. It is also unclear if any of the Petitioners are now employed by the Respondent as the circumstances at the time of filing suit were in flux. The advert called for applications before close Page 24 of 25

page 24 of 25

of business on 12th January 2026 and the suit was filed on 9 th January 2026. In the Court Ruling in Misc. Application No. E068 of 2025, the Court directed the parties to exhaust the procedures under the County Public Service Board prior to moving the Court. There is no evidence the Petitioners attempted to appeal the decision to the County Public Service Board in terms of section 77 of the Act. The exhaustion doctrine was yet again bypassed with a Petition being filed. 28. One other aspect that gives the Court pause is the fact that the Petitioners have not articulated a constitutional issue, rather, their Petition is an ordinary claim elevated to constitutional sphere in title only. The Petitioners ought to have preferred claims before the Court upon termination of their employ. The Petition being misplaced is struck out albeit with no order as to costs. It is so ordered. Dated and delivered at Kisumu this 23rd day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 25 of 25

page 25 of 25