Mwangi v County Government of Nyeri & 3 others

JUDGMENT 1. The Petitioner commenced the instant proceedings by way of a Petition dated 25th February 2025. 2. The Petition is anchored on the depositions contained in the supporting adavit sworn on 25th February 2025 by Patrick Kamaru Mwangi, the Petitioner herein. 3. The Petitioner deposes that he was employed by the 1st Respondent as a Ward Administrator pursuant to a letter of appointment dated 28th November 2014. 4. He states that, by a letter dated 26th February 2019, the Chief Ocer of the 1st Respondent notied him of allegations that he had participated in an act of bribery by receiving Kshs. 6,050.00 from an unidentied person on 14th January 2019. The Petitioner avers that the allegations were stated to constitute gross misconduct, and he was consequently called upon to show cause why disciplinary measures should not be taken against him. 5. The Petitioner avers that he responded to the show-cause letter, denying the allegations of misconduct. Subsequently, by a letter dated 26th August 2019, he was invited to attend an investigation interview scheduled for 27th August 2019. He states that he duly attended the interview but contends that the alleged complainant was neither called nor presented during the proceedings and that he has never seen or had an opportunity to confront the complainant to date. 6. The Petitioner maintains that he neither participated in nor was involved in the alleged act of bribery. 7. He further avers that, by a letter dated 19th September 2019, he was dismissed from employment with loss of pension and other benets. He appealed against the dismissal to the 2nd Respondent, but his appeal was disallowed by a letter dated 13th October 2021. The Petitioner avers that following the dismissal of his appeal, he applied for a review of the decision, which application was likewise disallowed. 8. It is the Petitioner’s case that the Respondents’ actions breached, violated and infringed his constitutional rights and fundamental freedoms. Consequently, he seeks the following reliefs: a. A declaration be issued that the dismissal of the Petitioner from employment with the 1st Respondent as a ward administrator was in violation of his rights under the Constitution of Kenya, 2010. b. An order for reinstatement of the Petitioner to his employment with the 1st Respondent as a ward administrator on terms no less favourable than those that operated at the time of his dismissal with no break in the Petitioner’s service and any days of absence owing from his dismissal be treated as leave of absence for salary and pension purposes. c. Backpay of salary from the time of dismissal to the time of judgment. d. In the alternative to reinstatement if found not practicable, or if the Petitioner opts not to be reengaged, an order that the Petitioner be deemed to have normally retired from the 1st Respondent’s service eective the date of dismissal and his accrued retirement benets or pension or gratuity as at that date be paid to him. e. Damages for unfair termination under Section 49(1) (c) of the Employment Act, 2007. f. Damages for breach of the Petitioner’s constitutional rights. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 2

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g. Costs of the Petitioner. 9. The 1st and 4th Respondents opposed the Petition through a joint Replying Adavit sworn on 23rd May 2026 by David Ruga, who describes himself as the County Secretary of the 4th Respondent. 10. Mr. Ruga admits that the Petitioner was employed by the 1st Respondent as a Ward Administrator. He avers that on 19th February 2019, the Chief Ocer, Public Administration of the 1st Respondent received a letter from Samuel Muturi Maranga titled “Request for a Liquor Licence”, in which the said person stated that he had sent Kshs. 6,000.00 to the Petitioner. According to Mr. Ruga, the payment was irregular since no payment was required in the process of applying for a liquor licence. 11. He avers that, by a letter dated 26th February 2019, the Chief Ocer in the Governor’s Oce informed the Petitioner that the said customer had sent funds to his M-Pesa account in connection with the issuance of a liquor licence and that the payment was considered to constitute a bribe. 12. Mr. Ruga states that the Petitioner responded to the show-cause letter, denying that he had solicited a bribe from a member of the public. 13. He further deposes that on 16th March 2019, the Petitioner was informed by the Chief Ocer that his response was unsatisfactory and was consequently required to provide a further explanation. The Petitioner responded by a letter dated 23rd May 2019, in which he admitted having received the funds from the customer but stated that he returned the money upon being informed that the payment was being treated as a bribe. Mr. Ruga states that the funds were returned on 22nd February 2019. 14. Mr. Ruga further deposes that the Petitioner was invited to a disciplinary hearing scheduled for 27th August 2019, during which he admitted receiving the money from the customer. He adds that the Petitioner did not raise any objection to the disciplinary proceedings upon receiving the invitation. 15. He states that, following consideration of the Petitioner’s representations, the 1st Respondent summarily dismissed him by a letter dated 19th September 2019 on the ground that his conduct amounted to gross misconduct. Following his dismissal, the Petitioner appealed to the County Public Service Board, but the appeal was dismissed for want of merit. 16. Mr. Ruga further avers that the Petitioner subsequently appealed to the Public Service Commission, the 2nd Respondent herein, which likewise dismissed the appeal. 17. He states that the Petitioner thereafter applied for a review of the 2nd Respondent’s decision, but the application was dismissed, with the decision being communicated to him through a letter dated 27th February 2023. 18. According to Mr. Ruga, the Petitioner could not have been retained in the county public service after being found culpable of soliciting and receiving a bribe from a member of the public who only wanted to be served. 19. Mr. Ruga further states that he has been advised by the advocates for the 1st and 4th Respondents, which advice he believes to be correct, that the present proceedings were instituted outside the limitation period prescribed under Section 90 (sic) of the Employment Act. 20. He further contends that the Petition does not raise any genuine constitutional issue, as the dispute could properly be determined through ordinary proceedings commenced by way of a Statement of Claim. He maintains that the alleged acts of illegality do not raise constitutional questions and that the Petitioner has not demonstrated how the Respondents violated or infringed the specic constitutional https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 3

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provisions cited in the Petition. In his view, the Petitioner has also failed to demonstrate that the alleged grievances can only be remedied through invocation of the Constitution. 21. Consequently, Mr. Ruga has urged the Court to dismiss the Petition in its entirety. 22. The 2nd Respondent opposed the Petition through Grounds of Opposition dated 9th February 2026, in which it contends that: 1. The Petition as framed is essentially an employment dispute that should have been instituted by way of a statement of claim and not a petition. The Petition therefore oends the doctrine of constitutional avoidance. 2. The Petitioner herein was dismissed from employment on 19th September 2019 and this Petition was led on 25th February 2025 which is a period of more than ve years. These proceedings are therefore statutorily time-barred by dint of the provisions of section 89 of the Employment Act. 3. The Petition is incompetent as it does not disclose with reasonable precision any provisions of the Constitution which are alleged to have been or (sic) matter in which such provisions have been infringed. This is espoused in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272. Submissions 23. The Petition was canvassed through written submissions. In support of the Petition, the Petitioner has submitted that his Petition is well-founded and discloses constitutional breaches. It is the Petitioner’s contention that the disciplinary process was initiated and conducted, and that the decision to dismiss him was taken by a person who had no power to act as such. In support of the Petitioner’s submission, the court was invited to consider the cases of Christopher Amasava v Kenya Revenue Authority (2025) KECA 512 and Judicial Service Commission v Newton Muriuki Muriu (2017) KECA 54 KLR. In the same vein, the Petitioner posits that the investigative committee was undertaken by an entity that does not exist in the County Governments Act. 24. It was further submitted by the Petitioner that his request to face his accuser and challenge him was ignored. To buttress the submissions of the Petitioner, reliance was placed on the case of Onjira v University of Nairobi (2019) eKLR. 25. The Petitioner has further contended that the investigative interview did not conrm the bribery claim as alleged. 26. The 1st and 4th Respondents have submitted that the mechanisms for resolution of the dispute herein are embedded within the Employment Act for the reason that the relationship between the Petitioner and the 1st Respondent is clearly based on an employment dispute. In this regard, they contend that the Petitioner has led this suit as a constitutional petition without specifying why the remedies he is seeking cannot be granted by the ELRC in a normal suit. 27. Referencing the case of Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] KECA 107 KLR, 1st and 4th Respondents submit that since this suit is primarily based on an employer-employee relationship, the Petitioner had no locus to invoke the constitutional interpretation powers of this Court as the issues raised by the Petitioner fall within the ambit of the Employment Act. 28. It is further submitted by the 1st and 4th Respondents that the issues raised in the instant Petition do not call for the Court’s Constitutional interpretative mandate under the Bill of Rights. They contend that there was no violation and/or infringement of any Constitutional provisions under the Bill of Rights https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 4

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to justify the invocation of the Constitutional jurisdiction of this Court. To buttress this position, the cases of College of Human Resource Management v Institute of Human Resource Management (Petition E448 of 2021) [2024] KEHC 5153 (KLR) (Constitutional and Human Rights) (16 May 2024) (Judgment) and Godfrey Paul Okutoyi & others v Habil Olaka & Another (2018) eKLR have been cited. 29. The 1st and 4th Respondents have further submitted that the Petitioner rightly invoked and exhausted the appeal mechanisms provided for under the County Government Act and the Public Service Commission Act. In this regard, they submit that there is no provision that provides that an employee dissatised with the decision of the PSC has a right of appeal to ELRC by way of a petition. 30. It is the position of the 1st and 4th Respondents that this Honourable Court lacks the jurisdiction to hear and determine the Petition herein since the same is res judicata as it was heard and determined by the Public Service Commission to its nality. 31. The 1st and 4th Respondents further submit that the Petition herein is res judicata as the Public Service Commission has rendered itself, exercised its constitutional and statutory mandate and determined the Petitioner’s cause of action with nality. The case of Sweta v County Government of Kakamega & 3 others (Employment and Labour Relations Cause E023 of 2023) [2024] KEELRC 1554 (KLR) (20 June 2024) (Judgment) was cited in support of this position. 32. It has further been submitted by the 1st and 4th Respondents that this suit is statutorily time-barred and subsequently placed reliance on Section 90 (sic) of the Employment Act, 2007. On this score, reliance was placed on the cases of Ndirangu v Henkel Chemicals E. A. Ltd (2013) eKLR, John Kiiri Njiiri V University of Nairobi (2021) eKLR and Stanley Miano v County Government of Nyeri (Cause E018 of 2022) [2022] KEELRC 13261 (KLR) (23 November 2022) (Ruling). 33. The 1st and 4th Respondents have further submitted that they did not violate any of the Petitioner’s rights as he claims. In this regard, they contend that throughout the disciplinary process, the Petitioner was informed of his charges, defended himself orally and in writing, and was given reasoned decisions for his termination during both the hearing and appeal stages. Referencing the case of Iyego Farmers’ Co-operative Sacco v Kenya Union of Commercial Food and Allied Workers [2015] KECA 302 (KLR), they submit that the 1st Respondent fully adhered to the requirements of procedural fairness. 34. On its part, the 2nd Respondent has submitted that the dispute placed before this Court is, in its true character, an ordinary employment dispute presented in the language of a constitutional petition, and that the Petitioner ought properly to have proceeded by way of a statement of claim under the ordinary jurisdiction of this Court. In support of its submissions, the 2nd Respondent has placed reliance on the cases of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) and Hassan v Simidi & another [2019] KECA 107 (KLR). 35. The 2nd Respondent contends that the Petition, as framed, oends the doctrine of constitutional avoidance and ought properly to have been instituted, if at all, by way of an ordinary statement of claim under the jurisdiction conferred on this Court by Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. To reinforce the position of the 2nd Respondent, the cases of Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) and College of Human Resource Management v Institute of Human Resource Management (2024] KEHC 5153 (KLR) were referenced. 36. It is further submitted by the 2nd Respondent that the Petitioner was dismissed from employment on 19th September 2019, while the instant Petition was led on 25th February 2025, a period of more than https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 5

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ve (5) years, rendering these proceedings statutorily time-barred under Section 89 of the Employment Act. 37. The 2nd Respondent further submits that the Petition does not disclose, with reasonable precision, the constitutional provisions said to have been infringed, nor the manner of the alleged infringement, contrary to the threshold set out in Anarita Karimi Njeru v Republic [1976-1980] KLR 1272. 38. It is the position of the 2nd Respondent that a petition that gestures broadly at Articles 27, 47 and 50 of the Constitution, without specifying with precision how the impugned acts, each already addressed under a distinct statutory disciplinary and appellate process, breach those particular provisions, falls short of this threshold and cannot be sustained. Analysis and Determination 39. Having considered the Petition, the Replying Adavit sworn on behalf of the 1st and 4th Respondents, the 2nd Respondent’s Grounds of Opposition, and the rival submissions, the Court nds that the following issues arise for determination: a. Whether the suit is time-barred; b. Whether this Court has jurisdiction to determine the dispute, the Petitioner having exhausted the statutory appeal and review mechanisms under the County Governments Act and the Public Service Commission Act; c. Whether the Petition is caught by the doctrine of constitutional avoidance; d. Subject to the Court’s ndings on the foregoing issues, whether the Respondents violated the Petitioner’s constitutional rights; and e. Whether the Petitioner is entitled to the reliefs sought. Time bar? 40. It is common ground that the Petitioner was summarily dismissed from employment on 19th September 2019 and that he instituted the Petition herein on 21st March 2025. It is further undisputed that the Petitioner appealed against the dismissal to the 2nd Respondent, which appeal was disallowed on 13th October 2021. 41. Therefore, it is evident that nearly ve (5) years elapsed between the date of dismissal and the institution of the Petition, while approximately four (4) years elapsed between the dismissal of the appeal and the ling of the Petition. Further, it is evident that the Petitioner instituted the instant suit nearly two (2) years after the 2nd Respondent dismissed his application for review. 42. Pursuant to Section 89 of the Employment Act, an action founded on or arising out of the Act or a contract of service is not sustainable after the lapse of three (3) years from the date the cause of action accrued. 43. In the case of Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, the Court of Appeal dened a cause of action as “a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person.” 44. Accordingly, a cause of action ordinarily accrues when the aggrieved party rst has a basis upon which to seek redress. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 6

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45. As stated hereinabove, the Petitioner was dismissed from employment on 19th September 2019. Aggrieved by his dismissal, he lodged an appeal before the 2nd Respondent, which appeal was dismissed on 13th October 2021. Dissatised with that decision, the Petitioner subsequently applied for a review before the 2nd Respondent, which application was likewise dismissed on 27th February 2023. 46. In the binding authority of Kiige v National Hospital Insurance Fund (Civil Appeal 657 of 2019) [2026] KECA 309 (KLR) (20 February 2026) (Judgment), the Court of Appeal held that a cause of action could only accrue upon an employee being notied of the outcome of his appeal. The Court further held that, until the right of appeal was either waived or exhausted, no actionable grievance arose capable of founding a cause of action. According to the appellate court, failure to pursue that right and, instead, proceeding directly to court would amount to a failure to exhaust the internal disciplinary process available to the Appellant under the contract of employment. 47. Similarly, in the present case, the Petitioner was required to exhaust the prescribed statutory disputeresolution mechanisms before approaching this Court. Accordingly, the grievance that is the subject of the present proceedings crystallised upon the 2nd Respondent’s dismissal of his application for review on 27th February 2023. 48. Applying Section 89 of the Employment Act and the binding decision of the Court of Appeal in Kiige v National Hospital Insurance Fund (Civil Appeal No. 657 of 2019) [2026], it follows that, having instituted the present Petition on 21st March 2025, the Petitioner cannot be said to have commenced the proceedings outside the statutory three-year period from the date on which the cause of action accrued. Jurisdiction of the Court to hear the Petition 49. The 1st Respondent has contended that this Court lacks jurisdiction to entertain the suit herein since the 2nd Respondent heard and determined the Petitioner’s case with nality. In the 1st Respondent’s view, a party aggrieved by the decision of the 2nd Respondent has no recourse to either le a fresh suit or appeal before this Court. 50. In light of the 1st Respondent’s contention, the question that arises for determination is whether, having exhausted the statutory dispute resolution mechanisms prescribed under the County Governments Act and the Public Service Commission Act, the Petitioner was thereby precluded from instituting the present suit. 51. It is this Court’s respectful view that, although the Constitution or statute may confer upon a person, authority or public body the power or mandate to determine disputes at rst instance or on appeal, and to render decisions in accordance with prescribed procedures, such provisions do not preclude the Court from exercising its jurisdiction to inquire into whether that power or mandate has been exercised in conformity with the Constitution and the law. 52. Accordingly, in the present case, the conferment upon the 2nd Respondent of the power to hear appeals and applications for review does not oust or extinguish the Court’s jurisdiction to interrogate the legality or manner in which the relevant constitutional or statutory powers and functions were exercised. 53. My position is further fortied by Section 87(2) of the Public Service Commission Act, which bars the institution of proceedings before any court in respect of matters falling within the 2nd Respondent’s jurisdiction to hear and determine appeals from the county public service unless the procedure prescribed under the Act has rst been exhausted. It thus follows that a person may approach the Court https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 7

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subject to the exhaustion of the statutory dispute resolution mechanism established under the Act. Needless to state, the exhaustion doctrine does not extinguish the Court's jurisdiction. 54. The upshot of the foregoing is that the Petitioner, being aggrieved by the decision of the 2nd Respondent, was not precluded from approaching this Court. Whether the Petition is caught by the doctrine of constitutional avoidance 55. The 1st and 4th Respondents have further contended that the Petitioner’s grievance is one that ought to have been pursued through ordinary litigation commenced by way of a Statement of Claim, as it does not raise any purely constitutional questions. 56. The 2nd Respondent has taken a similar position, arguing that, as framed, the Petition essentially raises an employment dispute which ought to have been instituted by way of a Statement of Claim rather than a constitutional Petition. Consequently, the 2nd Respondent maintains that the Petition oends the doctrine of constitutional avoidance. 57. It is apparent that the Petitioner approached this Court only after exhausting the appellate and review mechanisms established under the County Governments Act and the Public Service Commission Act. 58. Therefore, the grievance has not been brought before the Court in the rst instance as an ordinary employment dispute; rather, it arose following the determination of the matter through the statutory appellate and review process. Indeed, the Petitioner’s case does not constitute an ordinary employment dispute amenable to adjudication under the Employment Act. 59. In this regard, the Petitioner was at liberty to approach the Court by way of an application for judicial review to challenge any procedural impropriety or illegality in the decision-making process on the part of the Respondents, or by way of a Constitutional Petition alleging violation of his constitutional rights. 60. In light of the foregoing, the Court nds that the present dispute is not caught by the doctrine of constitutional avoidance. Constitutional violation? 61. The Petitioner alleges that the Respondents violated his rights under Articles 27, 47 and 50 of the Constitution. In particular, he contends that the process leading to the dismissal of his appeal and review was procedurally unfair and violated his right to a fair hearing, including his alleged denial of an opportunity to face and cross-examine the complainant. 62. The Petitioner further contends that the process culminating in his dismissal was unlawful and violated his right to administrative action that is lawful, ecient, reasonable and procedurally fair, as guaranteed under Article 47 of the Constitution. In particular, he challenges the initiation of the disciplinary proceedings, the ensuing investigations, and his eventual dismissal by the Chief Ocer of the 1st Respondent, contending that the said ocer lacked the requisite authority to undertake those actions against him. On that basis, the Petitioner characterises the disciplinary process as ultra vires. 63. In response to the Petition, the 1st and 4th Respondents contend that a disciplinary hearing was convened on 27th August 2019, during which the Petitioner admitted to receiving money from a customer (Samuel Muturi), conduct which was considered to constitute gross misconduct. 64. Notably, the Respondents did not produce the minutes of the alleged disciplinary hearing undertaken on 27th August 2019. Instead, they produced a report of the Investigation Committee dated 2nd https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 8

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September 2019. The report indicates that the Petitioner denied soliciting a bribe from the customer, Mr. Muturi. 65. According to the said report, the Petitioner stated that the customer had visited him and behaved arrogantly while demanding a liquor licence. Although he admitted receiving money from the customer, the Petitioner stated that he returned it upon being informed of the allegations of bribery. 66. The Investigation Committee’s report further indicates that the customer was interviewed separately on 29th August 2019. The customer stated that he had sent Kshs. 6,050.00 to the Petitioner through M-Pesa. Notably, there is no indication as to the circumstances in which the customer sent the money to the Petitioner. 67. While the evidence establishes that the customer transferred Kshs. 6,050.00 to the Petitioner’s M-Pesa account, it does not establish that the money was solicited as a bribe. This is more so noting that the customer did not expressly state, either in his handwritten letter or in his statement to the Investigation Committee, that the Petitioner had solicited a bribe from him. 68. In the circumstances, the allegation of solicitation, which the Petitioner expressly denied, raised a material factual issue that warranted clarication. It would therefore have been prudent, in the interests of procedural fairness, to aord the Petitioner an opportunity to cross-examine the customer on the circumstances in which the money was sent. 69. Such an opportunity would also have allowed the Respondents to resolve the apparent discrepancy between the allegation of soliciting a bribe and the customer’s evidence concerning the payment. 70. The opportunity to cross-examine, where necessary for the fair determination of disputed facts, is an important component of procedural fairness. Article 47 of the Constitution guarantees every person administrative action that is expeditious, ecient, lawful, reasonable and procedurally fair. Parliament gave eect to this constitutional guarantee through the Fair Administrative Action Act. In particular, Section 4(3)(f) of the Act requires an administrator, where an administrative action is likely to adversely aect a person’s rights or fundamental freedoms, to give the aected person notice of the right to crossexamine or where applicable, cross-examine persons who give adverse evidence against him. 71. In the present case, where the allegation of bribery turned substantially on the circumstances surrounding the payment and the Petitioner had expressly denied soliciting the money, the failure to aord him an opportunity to test the complainant’s evidence rendered the process procedurally decient. The Respondents were therefore under an obligation to inform the Petitioner of his right to cross-examine the complainant and, where necessary, facilitate the exercise of that right before arriving at a determination adverse to him. 72. The other pertinent issue that comes to the fore concerns the authority of the Chief Ocer in the Governor’s Oce, Nyeri County, to initiate and undertake the disciplinary process that culminated in the Petitioner’s dismissal from employment. 73. It is common ground that the Chief Ocer in the Governor’s Oce, Nyeri County, initiated the disciplinary process against the Petitioner by a letter dated 23rd February 2019, requiring him to show cause why disciplinary action should not be taken against him. The record further shows that the said Chief Ocer subsequently communicated the decision to dismiss the Petitioner from service. 74. Pursuant to Section 59(1) of the County Governments Act, County Public Service Boards are, inter alia, vested with the mandate to establish oces at the county level, make appointments, exercise disciplinary control over persons holding or acting in county public service oces, remove such persons from oce, and oversee performance management. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 9

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75. This statutory mandate was armed by the Court of Appeal in Kisumu County Public Service Board & another v Samuel Okuro & 7 others [2018] KECA 472 (KLR), where the appellate Court held that County Public Service Boards bear the responsibility for regulating the employment of ocers within the county public service. 76. It follows, therefore, that the power to exercise disciplinary control over, and to remove, persons holding or acting in oces established within the county government is vested in the County Public Service Board, and not in the Chief Ocer. 77. While Section 76(6) of the County Governments Act empowers a county chief ocer to take preliminary measures, including interdiction or suspension, against a public ocer serving under his or her supervision, that power does not extend to the exercise of substantive disciplinary control culminating in dismissal or removal of the ocer from service. 78. It is this Court’s respectful view that such substantive disciplinary authority is vested in the County Public Service Board under Sections 59 and 76 of the County Governments Act. 79. Accordingly, the issuance of the Notice to Show Cause and the subsequent dismissal of the Petitioner by the Chief Ocer in the Governor’s Oce, Nyeri County, were undertaken without lawful authority and were therefore ultra vires. 80. I say so noting that there is no evidence on record demonstrating that the 4th Respondent delegated, in writing, its statutory disciplinary function in respect of the Petitioner to the Chief Ocer. In the absence of such evidence of delegation, it follows that the Chief Ocer did not have the authority to exercise the disciplinary powers vested by law in the 4th Respondent. 81. In light of the foregoing, the Court nds that the process leading to the Petitioner’s dismissal from service fell short of the constitutional requirement of lawful and procedurally fair administrative action under Article 47 of the Constitution. The violation arose not merely from the merits of the disciplinary decision, but from the want of lawful authority and the manner in which the decision-making process was undertaken. Reliefs? 82. The Court nds that the Petitioner is entitled to a declaration that his rights under Article 47 of the Constitution were violated by the Respondents. Consequently, the Court nds that the Petitioner is entitled to an award of damages for the violation of his constitutional rights. 83. I have considered past awards of compensatory damages for violation of the right to fair administrative action with a view to obtaining an indication of the judicial trends in awards in constitutional matters. In Jekim Hospital Nkubu Ltd & Another v Kenya Medical Practitioners and Dentists Council & 2 Others (Constitutional Petition No. 12 of 2023) [2023] KEHC 27205 (KLR) (28 December 2023) (Judgment), the Court took into account, among other considerations, the duration of the violation of the rights to fair administrative action and fair hearing, and awarded damages in the sum of Kshs.1,000,000.00. 84. In County Assembly of Migori & 3 Others v Ouma & 2 Others (Civil Appeal No. 102 of 2018) [2025] KECA 6 (KLR) (10 January 2025) (Judgment), the Court of Appeal, having found that the violation of the Respondents’ constitutional right to be heard under Article 50(1) and their right to fair administrative action under Article 47 of the Constitution had been established before the trial court, set aside the award of Kshs.3,500,000.00 and substituted it with an award of Kshs.1,500,000.00. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 10

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85. And further, in John Gakuo & another v County Government of Nairobi, Governor & 2 others [2018] KECA 462 (KLR), the Court of Appeal set aside the award of Kshs.904,448.00 made for unfair termination under the Employment Act and, in substitution thereof, awarded Kshs.1,500,000.00 as damages for violation of the Appellant’s right to fair administrative action. 86. Drawing parallels with the foregoing authorities, I am of the considered view that an award of Kshs.1,500,000.00 would constitute reasonable compensation for the violation of the Petitioner’s constitutional right to fair administrative action. 87. Having found that the disciplinary process culminating in the Petitioner’s dismissal from employment was undertaken without lawful authority, the Court nds that the Petitioner is entitled to the pension benets accrued during his years of service under the applicable pension scheme. Orders 88. In the end, the Court enters judgment in favour of the Petitioner in the following terms: a. A declaration is hereby issued that the Respondent violated the Petitioner’s rights enshrined under Article 47 of the Constitution. b. The 1st and 4th Respondents shall pay to the Petitioner damages in the sum of Kshs 1,500,000.00 on account of breach of his constitutional rights. Interest shall accrue at court rates from the date of Judgment until payment in full. c. The 1st and 4th Respondents are also directed to facilitate the processing of the Petitioner’s pension benets. d. The Respondents shall pay the costs of this suit. DATED, SIGNED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: Mr. King’ori for the Petitioner Ms. Ochieng for the 1st and 4th Respondents Mr. Cherogony for the 2nd Respondent No appearance for the 3rd Respondent Ndati Court Assistant ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 11

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Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. STELLA RUTTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2647/eng@2026-09-25 12

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