Benard Oichoe Kinara & 18 Others v Maasai Mara University, The National Assembly & The Attorney General; Commission on Administrative Justice (Interested Party)

MAASAI MARA RESPONDENT VERSUS UNIVERSITY.......................................1ST THE NATIONAL RESPONDENT ASSEMBLY........................................2ND THE ATTORNEY RESPONDENT GENERAL..........................................3RD AND THE COMMISSION ON ADMINISTRATIVE JUSTICE....................................INTERESTED PARTY JUDGMENT 1. Through a Petition dated 24th October 2025 the Petitioner seeks the following reliefs: (1) A declaration that the failure by the 1st and 2nd Respondents to recommendations consider and and report act on the CAJ (Inquiry File No. CAJ/MMUK/013/1731/19) constitutes a gross abuse of discretion, manifest injustice, and a violation of Articles 10, 22, 47, 59, and 95 of the Constitution. (2) A declaration that such failure (as particularized at I above) amounts to abdication of the Page 2 of 34 2nd

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Respondent's constitutional oversight duties under Articles 59 and 95. (3) An order of mandamus compelling the 2nd Respondent to, within a reasonable timeframe fixed by this Court's order, consider, debate, and take appropriate action on the CAJ recommendations and report AND IN DEFAULT, there be judgement against the 1st Respondent awarding the Petitioners dues as itemized at Paragraph 4 of this Petition with interest at court rates from 1st December 2016 till payment in full. (4) General damages to be assessed by this Court for the losses and infringement of rights suffered by the Petitioners. (5) An order awarding costs of this Petition to the Petitioners. (6) Any other relief the court deems equitable. 2. The Petitioners' case is that they served as part-time lecturers at Maasai Mara University's (1st Respondent) Kisii and Kilgoris Campuses between 2014 and 2016 but were not Page 3 of 34

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remunerated for services rendered. They subsequently lodged a complaint with the Commission on Administrative Justice (CAJ) on 10th July 2019, which, after investigation, found that the University had violated their right to fair administrative action under Article 47 by inordinately delaying payment of their dues. The CAJ then quantified the dues as listed in the Petition and directed the University to settle the amounts within twelve months and submit a payment plan within sixty days. The Petitioners contend that despite the CAJ determination, the 1st Respondent has neither paid the admitted dues nor provided a meaningful payment plan. They state that the University had, as early as December 2019, acknowledged liability for approximately 80% of the claims but subsequently relied on shifting explanations, including alleged deficiencies in its records and the availability of funds. They further contend that the CAJ report was tabled before the National Assembly on 4th July 2023, but the 2nd Respondent has, despite repeated demands and reminders, neither considered nor acted upon it. They therefore aver that the Respondents' prolonged inaction has unjustly deprived them of wages earned nearly Page 4 of 34

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a decade ago and perpetuated the administrative injustice already identified by the CAJ. 3. The Petitioners consequently contend that the Respondents' conduct violates Article 47(1) and (2) of the Constitution by subjecting them to prolonged, unreasonable and unexplained administrative delay and by failing to provide reasons for the continued inaction; Article 10(2) by disregarding the constitutional values of the rule of law, accountability, transparency and good governance; and Article 22(1) by leaving them without an effective remedy for enforcement of their established claims. They further contend that the failure to act on the CAJ determination frustrates the Commission's constitutional mandate under Article 59(4), while the National Assembly's failure to consider the report amounts to an abdication of its oversight responsibilities under Article 95. They also aver that Article 27 of the Constitution has been violated as their continued nonpayment, as part-time academic staff, amounts to unequal treatment and denial of equal benefit and protection of the law. Page 5 of 34

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4. In response the 1st Respondent rather than filing a replying affidavit, filed a “reply to petition”. It contends that the Petitioners have not provided any proof of employment. It therefore denies liability for the unpaid remuneration. The 1st Respondent further denies knowledge of the alleged determination by the Commission on Administrative Justice and contends that the Petitioners have placed no evidence before the Court demonstrating violation of any of the constitutional provisions relied upon. The 1st Respondent further contends that the Petition is improperly before the Court because, in substance, it concerns an alleged claim for unpaid salaries arising from an employment relationship. It argues that such a dispute is contractual and can only be determined through an ordinary employment claim upon presentation and testing of evidence. It consequently maintains that the declarations and other reliefs sought are unsupported by sufficient pleadings or evidence and that no constitutional case has been established to warrant the Court's intervention. The 1st Respondent therefore prays that the Petition be dismissed with costs. Page 6 of 34

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5. The 2nd Respondent equally opposed the Petition via a replying affidavit sworn by Mr. Samuel Njoroge a Clerk therein. It states that its role under Article 254 of the Constitution and section 42(4) of the Commission on Administrative Justice Act is limited to receiving and acting upon reports from the Commission where a public body has failed or refused to implement the CAJ's recommendations. It contends that it has no mandate to directly enforce CAJ determinations or intervene in their implementation in the absence of such a report from the Commission. 6. The 2nd Respondent further contends that the Petitioners' remedy for enforcement of the CAJ determination lies in the courts through mechanisms such as judicial review available under Articles 22 and 23 of the Constitution and section 41 of the CAJ Act. It maintains that the CAJ determination is an administrative action capable of judicial enforcement and that the independence of the Commission precludes the National Assembly from interfering with its implementation unless the Commission requests such intervention in accordance with section 42(4) of the CAJ Act. Relying on Kenya Vision 2030 Delivery Board v Commission on Page 7 of 34

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Administrative Justice & 2 others [2021] KESC 35 (KLR), the 2nd Respondent states that the National Assembly can only act upon a CAJ report specifically notifying it of a public body's non-compliance. 7. In the present circumstances, the 2nd Respondent avers that it did not receive a report either notifying it of the 1st Respondent's non-compliance or specifically requesting its intervention. The 2nd Respondent therefore denies that it abdicated its constitutional oversight mandate and maintains that the constitutional claims against it are misplaced. It consequently urges the Court to dismiss the Petition as against it. 8. On its part the Interested Party filed a replying affidavit sworn by Mr. Daniel Mwangi Karomo its Acting Secretary and CEO. The Interested Party states that it received the Petitioners' complaint on 10th July 2019. After receiving the complaint, it avers that it forwarded the same to the 1st Respondent via correspondences dated 11th September 2019 and 28th October 2019, to which, in its response dated 10th December 2019, the 1st Respondent acknowledged that the Page 8 of 34

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Petitioners had served as part-time lecturers, stated that their claims were undergoing verification, and indicated that approximately 80% of the claims had been verified as genuine. This was followed by a letter from the Petitioners dated 7th February 2020 disputing the 1st Respondent's position. 9. Later via letter dated 6th March 2020 and 6th August 2020, the Interested Party states that it expressed concern that the 1st Respondent had not initiated payment despite undertaking to do so. The 1st Respondent acknowledged liability through a letter dated 16th September 2020 and indicated that it had reached out to the Petitioners for an amicable settlement. After an apparent stalemate, the Interested Party states that it issued summons to the 1st Respondent's Vice Chancellor on 18th May 2021. The Vice Chancellor appeared before the Commission on 9th June 2021, acknowledged the Petitioners' claim but cited financial constraints and challenges in verification, after which the Interested Party granted the 1st Respondent 14 days to engage the Petitioners with a view to agreeing on a payment plan with definitive timelines. Page 9 of 34

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10. The Interested Party states that, following the 1st Respondent's failure to respond to its further inquiries, it exercised its statutory mandate under the Constitution and the Commission on Administrative Justice Act and issued a determination finding that the 1st Respondent had acted unreasonably and violated the principles of fair administrative action by delaying payment of the Petitioners' dues. The Commission consequently recommended that the claims be settled within twelve months and that a precise payment plan be submitted within sixty days. It avers that it communicated that determination to the 1st Respondent on 25th March 2022. recommendations Upon had not being been informed that the implemented, the Commission states that it became functus officio and, pursuant to section 42 of the CAJ Act, reported the 1st Respondent's non-compliance to the National Assembly through its bi-annual report. The Interested Party further states that the Petitioners subsequently wrote to the National Assembly on 9th October 2023 seeking intervention. It maintains that, having admitted liability and undertaken to settle the claims, the 1st Respondent was under a legal and Page 10 of 34

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administrative obligation to honour that undertaking and the Commission's recommendations. 11. The Petition was canvassed by way of written submissions. Petitioners' Submissions 12. The Petitioners identify the following issues for established an determination: (a) Whether the Petitioners have employment relationship with the 1st Respondent; (b) Whether the 1st Respondent violated the Petitioners' right to fair administrative action; (c) Whether the 2nd Respondent is obliged to act on CAJ reports; and (d) Whether this Court has jurisdiction to grant the reliefs sought. 13. On the employment relationship, the Petitioners submit that the 1st relationship is Respondent's denial contradicted by Page 11 of 34 its of the own employment conduct and

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admissions. They point to the 1st Respondent's letter dated 10th December 2019 confirming that approximately 80% of their claims had been verified as genuine, its acknowledgement of liability on 16th September 2020, and the appearance of its Vice-Chancellor before the CAJ on 9th June 2021, where the claims were acknowledged. They rely on Choitram & another v Nazari [1984] KECA 116 (KLR) for the proposition that a party cannot resile from unequivocal admissions without cogent explanation. They further submit that the absence of a formal written contract does not negate an employment or service relationship, and that their entitlement to fair remuneration is protected under Article 41 of the Constitution and Article 23(2) of the Universal Declaration of Human Rights. 14. On the second issue, the Petitioners submit that the 1st Respondent violated Article 47(1) and (2) of the Constitution and section 4(1) of the Fair Administrative Action Act by unreasonably and unjustifiably delaying payment of their dues despite repeatedly acknowledging their claims and undertaking to settle them. They contend that the delay, Page 12 of 34

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which has persisted for several years, is unreasonable within the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and that the 1st Respondent failed to provide written reasons for its continued non-payment as required by Article 47(2) and section 6 of the Fair Administrative Action Act. They submit that the CAJ reached a similar finding in its March 2022 determination and that the Court should accord appropriate weight to that finding, particularly having regard to the constitutional independence of commissions as recognised in In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR. The Petitioners assert that the dispute cannot be reduced to an ordinary contractual claim because it concerns enforcement of their constitutional right to fair administrative action. Relying on Randu Nzai Ruwa & 2 others v Internal Security Minister & another [2012] eKLR, they urge the Court to interpret the Bill of Rights broadly and purposively. They contend that Article 23(3) empowers the Court to grant appropriate relief for violation of constitutional rights. Page 13 of 34

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15. On whether the 2nd Respondent is obliged to act on the CAJ's report, the Petitioners submit that section 42(4) of the Commission on Administrative Justice Act requires the National Assembly to take appropriate action where the CAJ reports non-compliance with its recommendations by a State organ or public officer. They contend that the CAJ confirmed that it had reported the 1st Respondent's non-compliance to the National Assembly and that the Petitioners separately wrote to the Speaker on 9th October 2023 seeking intervention. They therefore submit that the 2nd Respondent cannot avoid its statutory obligation merely by contending that it received the report as part of a general bi-annual report. Relying on Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] KESC 35 (KLR), the Petitioners submit that the National Assembly is required to actively consider and take appropriate action on CAJ reports of non-compliance and that its role cannot be reduced to merely receiving such reports. 16. On grant of the reliefs sought, the Petitioners submit that this Court has jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Page 14 of 34

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Relations Court Act to determine disputes arising from employment and labour relations. They further rely on Articles 22 and 23 of the Constitution and submit that the Court is empowered to determine alleged violations of constitutional rights and grant appropriate relief. Relying on United States International University (USIU) v Attorney General & 2 others [2012] eKLR, they submit that the Employment and Labour Relations Court, being a court of equal status with the High Court, has jurisdiction to interpret and enforce constitutional rights within its mandate. The Petitioners further rely on Peter M. Kariuki v Attorney General [2014] eKLR for the proposition that constitutional issues may properly be raised by way of a petition notwithstanding the availability of an alternative remedy. They also rely on Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] KESC 35 (KLR), in which the Supreme Court recognised the Court's power to grant appropriate remedies under Article 162(2) of the Constitution and section 12(3) of the Employment and Labour Relations Court Act. Page 15 of 34

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1st Respondent's Submissions 17. On the employment relationship and entitlement to the remuneration claimed, the 1st Respondent submits that the Petitioners bear the burden of establishing the alleged employment relationship and their entitlement to the sums claimed under sections 107, 108 and 109 of the Evidence Act. It relies on Everret Aviation Limited v Kenya Revenue Authority [2013] eKLR and David Gichana Omuya v Mombasa Maize Millers Ltd [2014] eKLR, for the proposition that an employment relationship cannot be founded on mere assertions. It further relies on Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR and Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR on the indicia of an employment relationship and the distinction between a contract of service and other forms of engagement. It maintains that the Petitioners appointment letters, contracts, timetables, departmental have not produced approved teaching allocations, payroll records, payment vouchers, attendance registers, correspondence or Page 16 of 34

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other contemporaneous evidence demonstrating that they were engaged by the University or rendered the alleged services. Relying on Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited [2016] eKLR, it submits that even in cases of alleged oral employment, a claimant must first lay a credible evidential foundation for the engagement. Moreover, it asserts that the statutory obligation on an employer to maintain employment records does not relieve a claimant of the initial burden of proving the existence of the relationship. The 1st Respondent therefore submits that the Petitioners have failed to prove the fact of service, the terms of engagement or the quantum of the alleged outstanding remuneration. 18. On whether the CAJ findings and recommendations are binding and enforceable against it, the 1st Respondent submits that the Commission on Administrative Justice is principally an investigative and recommendatory body and that its findings and recommendations do not have the force of a court decree or automatically create enforceable monetary liability. Relying Page 17 of 34 on Commission on

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Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR and Republic v Commission on Administrative Justice ex parte Kenya Revenue Authority [2019] eKLR, it submits that the Commission cannot exercise judicial authority or conclusively determine contested contractual rights and civil liability. It further relies on Speaker of the National Assembly v Karume [1992] KLR 21 for the proposition that where the law provides a specific mechanism for enforcement, that procedure should be followed. It asserts that the CAJ recommendations cannot substitute proof of the alleged employment relationship, services rendered or indebtedness. It contends that the Court must independently evaluate the evidence and cannot treat an administrative determination as conclusive proof of civil liability. It further submits that the Petitioners have not placed before the Court the complete inquiry record or the evidence upon which the CAJ reached its conclusions. Accordingly, it maintains that the CAJ recommendations, at their highest, are persuasive administrative findings and cannot, without more, sustain the monetary and coercive remedies sought. Page 18 of 34

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19. On whether the Petitioners' rights to fair administrative action were violated, the 1st Respondent submits that Article 47 of the Constitution regulates administrative action but does not constitutionalise every contractual, commercial or employment dispute involving a public body. It contends that the Petitioners have not identified any specific administrative decision or action by the University that was unlawful, unreasonable or procedurally unfair. Rather, their grievance is essentially one of alleged non-payment of remuneration, which, even employment if or proved, would contractual constitute an ordinary claim. Relying on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR and Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR, the 1st Respondent submits that constitutional litigation should not be used as a substitute for ordinary statutory or contractual remedies. It further submits that the Petitioners have failed to establish the factual foundation necessary to sustain an Article 47 claim, having not proved the alleged employment relationship or entitlement to remuneration. Moreover, it submits that the Page 19 of 34

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Petition fails to meet the constitutional pleading threshold. Relying on Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, it contends that the Petitioners were required to identify with reasonable precision the constitutional provisions violated, the manner of violation and the facts supporting the alleged infringement. It submits that the generalized invocation of Articles 10, 22, 47, 59 and 95 does not satisfy that threshold. 20. As to whether the Petitioners have established a basis for constitutional remedies, the 1st Respondent submits that constitutional remedies cannot issue in the absence of proof of the underlying rights and factual circumstances giving rise to the alleged violations. Relying on Kirugi & another v Kabiya & 3 others [1987] KLR 347 and Palace Investment Ltd v Geoffrey Kariuki Mwenda & another [2015] eKLR, it reiterates that the burden of proof remains with the party asserting a fact and that the Court must determine the case on credible evidence. It further relies on Raila Amolo Odinga & another v Independent Electoral Page 20 of 34

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and Boundaries Commission & 2 others [2017] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR in submitting that constitutional evidence claims rather Respondent must than further be supported generalized submits by allegations. that concrete 1st The declarations and constitutional damages are not granted as a matter of course. Relying on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR and Ramanoop v Attorney General of Trinidad and Tobago [2005] UKPC 15, it submits that constitutional damages are compensatory and arise only upon proof of an infringement. It therefore contends that, having failed to establish employment, rendition of services, indebtedness or a constitutional violation, the Petitioners have no basis for reliefs sought. 21. On the specific monetary claims, the 1st Respondent relies on Capital Fish Kenya Limited v Kenya Power & Lighting Company proposition that Limited specific [2016] monetary eKLR claims for the must be specifically pleaded and strictly proved. It submits that the Page 21 of 34

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figures contained in the CAJ determination cannot, without independent proof, establish either liability or quantum. It further contends that the alternative prayer for judgment against the University in the event of parliamentary inaction is legally untenable and inconsistent with due process under Articles 25(c), 50 and 159 of the Constitution. 22. Concerning the reliefs sought and costs, the 1st Respondent submits that the Petitioners have failed to establish the legal and factual basis for any of the reliefs sought. It contends that the prayers for declarations, payment, mandamus, general damages and interest are consequential upon proof of an enforceable right, which has not been established. It further submits that the reliefs sought are internally inconsistent, particularly the prayer for parliamentary intervention coupled with a conditional judgment against the University should Parliament fail to act. On costs, the 1st Respondent urges the Court to dismiss the Petition with costs. 2nd Respondent's Submissions Page 22 of 34

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23. The 2nd Respondent submits that the CAJ report and did not specifically detail the 1st Respondent's subsequent noncompliance or request parliamentary intervention. The 2nd Respondent asserts that the Petitioners' letter to the Speaker dated 9th October 2023 could not itself trigger section 42(4) of the CAJ Act, since the statutory power to prepare and submit such a report rests with the CAJ. It therefore maintains that, in the absence of proof of a qualifying report from the CAJ, no enforceable statutory duty arose on the part of the National Assembly. It asserts that not every reference to a complaint or recommendation in a CAJ bi-annual or annual report necessarily constitutes a report under section 42(4) of the CAJ Act. 24. On whether it violated the Petitioners' rights, the 2nd Respondent submits that the Petitioners have not established any constitutional violation attributable to it. Relying on Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, it submits that constitutional claims must identify the specific constitutional Page 23 of 34

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provision infringed, the impugned act or omission and the manner in which that conduct resulted in the alleged violation. Mere citation of constitutional provisions is insufficient. On Article 47 and sections 4 and 6 of the Fair Administrative Actions Act, the 2nd Respondent asserts that the Petitioners' claims arose from their relationship with the 1st Respondent. Moreover, it maintains that a report satisfying section 42(4) of the CAJ Act had not been submitted to the 2nd Respondent. Relying on Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, it submits that although Article 47 applies to the exercise or non-exercise of public power adversely affecting rights, the existence of the public duty and the impugned conduct must first be established. The 2nd Respondent maintains that no violation of Article 22 has been demonstrated because the National Assembly did not prevent the Petitioners from accessing the Court or pursuing their claims against the University. Similarly, the allegation of discrimination under Article 27 is unsupported because the Petitioners have not identified a comparable group that was treated differently, a prohibited ground of discrimination Page 24 of 34

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or any parliamentary decision that subjected them to differential treatment. It relies on Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) on the burden of establishing differential treatment and its connection to a prohibited ground. With respect to Article 59(4), the 2nd Respondent submits that the provision is principally institutional and enabling in nature and does not make CAJ recommendations binding, create a personal right to payment by Parliament or transfer the obligations of an investigated public body to the National Assembly. It asserts that Article 95's oversight mandate must be distinguished from the administration or adjudication of employment claims. Relying again on Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] KESC 35 (KLR), the 2nd Respondent submits that where the underlying dispute concerns an employment relationship, liability and entitlement to employment remedies fall within the jurisdiction of the Employment and Labour Relations Court. It consequently maintains that no independent constitutional violation Assembly has been established. Page 25 of 34 by the National

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25. On whether the reliefs sought are available against the 2nd Respondent, it submits that mandamus cannot be used to dictate how a public body exercises a discretion. Relying on Kenya National Examination Council v Republic; Gathenji & 9 others (Ex parte) [1997] KECA 58 (KLR), it contends that the Petitioners had to first establish that a report contemplated under section 42(4) of the CAJ Act was submitted to the National Assembly and that the corresponding statutory duty had crystallised. It further submits that, even if a qualifying report had been submitted, section 42(4) of the CAJ Act merely requires the National Assembly to take “appropriate action.” The provision does not require Parliament to debate the matter in plenary, adopt CAJ's recommendations, impose a particular sanction or direct the University to pay the Petitioners. It thus asserts that the Court cannot therefore prescribe the particular parliamentary procedure or substantive outcome to be adopted. Relying on Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] KESC 35 (KLR), the 2nd Respondent submits that Page 26 of 34

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courts should not ordinarily dictate the manner in which CAJ recommendations are implemented, absent gross abuse of discretion, manifest injustice or palpable excess of authority. It relies on In the Matter of the Speaker of the Senate & another [2013] KESC 7 (KLR) on the constitutional separation of powers, submitting that although the Court may examine Parliament's compliance with the Constitution and the law, it should not prescribe its internal procedure or dictate the substantive decision it must reach. In view of the foregoing, it therefore urges the court to decline the orders sought against the 2nd Respondent as the issue of remuneration remains a matter between the Petitioners and the 1st Respondent and that any constitutional or monetary relief should be directed against the institution responsible for the violation proved. In conclusion it urges the Court to dismiss the Petition against it. Interested Party's Submissions 26. On the Interested Party's side it identified two issues for determination, namely: Page 27 of 34

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(i) whether it lawfully discharged its mandate; and (ii) Whether the respondents are legally bound to comply with the recommendations contained in the Commission's determination. 27. On discharge of its mandate the Interested Party submits that it fully discharged its mandate under Article under Article 59(4) of the Constitution and sections 8, 26, 27, and 41 of the CAJ Act to investigate complaints of maladministration, abuse of office, unfair administrative action and injustice in public administration and to make appropriate findings and recommendations. It highlights the fact that it investigated the Petitioners' complaint, afforded the parties an opportunity to be heard, considered the material presented and rendered its determination. 28. On the duty to comply with the Commission's recommendations, the Interested Party submits that the 1st Respondent was legally and administratively bound to comply with the recommendations contained in the CAJ determination. It relies on section 42 of the CAJ Act, which requires a public body to which recommendations have been Page 28 of 34

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made to report on the steps taken to implement them or the reasons for non-implementation. The Interested Party contends that the statutory framework therefore requires public bodies either to implement lawful recommendations or provide lawful and reasonable justification for their failure to do so. Moreover, it asserts that the 1st Respondent cannot resile from its undertaking to make payment having previously acknowledged the claims. It asserts that the undertaking created a legitimate expectation that the admitted claims would be settled, hence it was protected by Article 47 of the Constitution and the Fair Administrative Action Act. To support its position, the Interested Party relies on Articles 10 and 232 of the Constitution, which require State organs and public institutions to uphold, among other values, the rule transparency, emphasizes of law, good accountability that determinations Commission's oversight Commission on integrity, and professional ethics. permitting previously governance, public bodies accepted role. Relying Administrative to ignore undermines on Justice the Republic Ex It v parte National Social Security Fund Board of Trustees Page 29 of 34

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[2015] eKLR, the Interested Party submits that the Court should not construe the Commission's constitutional and statutory mandate narrowly, particularly in matters involving maladministration and the protection of rights. In conclusion it urges the court to uphold its determination and find that the 1st Respondent was bound by the Commissions and its own undertaking to settle the Petitioners' claims, and allow the Petition as prayed. Disposition 29. The Petition raises certain interesting aspects of the remit of this Court to direct public bodies to act. The Commission on the Administration of Justice (CAJ) is mandated to inter alia investigate complaints of delay, abuse of power, unfair treatment, manifest injustice or discourtesy and other forms of maladministration. It prepares a report to the National Assembly. It is provided for in section 42(4) of the Commission on Administrative Justice Act that if a public body fails or refuses to carry out the recommendations of the Commission within a set time, the Commission can report Page 30 of 34

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this failure to the National Assembly, which will then take appropriate action. 30. That informs the Petition against the National Assembly. The National Assembly is accused of failing to act on the report and this Court is asked to compel the National Assembly to consider the report and act on it. Whereas the Court has many powers, it lacks the power to direct Parliament. Parliament has a role to play in public administration matters but it must be appropriately moved. It is not shown by the Petitioners or the Interested Party if they triggered the steps for Parliament to consider the matter. The letter from the Commission on Administrative Justice which is before this Court is not the report contemplated under statute for Parliament to act. The Court agrees with the submissions and position of the 2 nd Respondent. In my considered view, the suit against the 2 nd Respondent is misplaced and accordingly dismissed albeit with no order as to costs. 31. The 1st Respondent has brought this matter upon itself. From the correspondence before the Court and the actions of Page 31 of 34

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the Interested Party directed to it, it is apparent the 1 st Respondent has breached constitutional rights of the Petitioners. Whereas they have been inelegant in articulating these rights that have been infringed upon, it is clear the right to fair administrative action under Article 47 has been abridged by the 1st Respondent repeatedly. 32. The Petitioners only seek what they are entitled to and the 1st Respondent has constantly moved the goal posts with assertions of no budgetary provisions to promises to settle the dues. It is the finding of this Court that the sums due from the 1st Respondent to the 19 Petitioners are as enumerated in Part III Para 4 of the Petition which are as follows: i. Jared Oanda Makori Kshs. 78,000/- Kisii Kshs. 302,250/Kilgoris ii. Javan Z. Mokebo Kshs. 1,062,750/- Kisii Kshs. 614,250/Kilgoris iii. Enock Mauthia Oundo Kshs. 867,750/- Kisii iv. Geoffrey M. Ratemo Kshs. 877,500/- Kisii v. Job Nyanumba Abuga Kshs. 546,000/- Kisii vi. David H. Oyagi Kshs. 87,750/- Kisii vii. Julius Kambi Kshs. 380,250/- Kisii Page 32 of 34

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viii. Norah Nyarangi Kshs. 429,750/-Kisii ix. Benard Kinara Kshs. 575,250/- Kisii x. Beatrice N. Nyatigo Kshs. 468,000/- Kisii xi. Isaiah Osiemo Ongeri Kshs. 828,750/- Kisii xii. James Nyabuto Nyasore Kshs. 877,500/- Kisii xiii. Norah Moige Nyaiyo Kshs. 136,500/- Kisii xiv. Rachel Kemunto Nyansera Kshs. 263,250/- Kisii xv.Joyce Nyamoita Moseti Kshs. 468,000/- Kisii xvi. Davis Anunda Nyakwara Kshs. 97,500/- Kisii xvii. Nancy Rabera Mayoyo Kshs. 146,250/- Kisii xviii. Bernard O. Okengo Kshs. 409,500/- Kisii xix. Moturi E. Shadrack Kshs. 672,750/- Kisii 33. The Petitioners will have interest on the sums above at Court rates from the date of judgment till payment in full. As they have had to seek the remedies they are granted by Court, they will be entitled to costs to be borne exclusively by the 1st Respondent. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Page 33 of 34

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Nzioki wa Makau, MCIArb. JUDGE Page 34 of 34

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