Anne Wairimu Kinuthia v County Government of Kiambu

Resource Development on 18th December 2020. Her gross monthly salary is Kshs.228,350. 2. In March 2024, she reported suspected fraudulent activities in her department including tampering with the manual payroll records. Subsequently, she was sent on compulsory leave for 90 days vide a letter dated 21 st March 2024. 3. While on leave, she was served with an interdiction letter dated 13th May 2024 in connection with the payroll fraud she had reported. Accordingly, she was placed on half pay pending investigations by the Department of Criminal Investigations (DCI). 4. After persistently writing letters to the employer about the prolonged interdiction, the respondent lifted the interdiction vide letter dated 5 th December 2025, with effect from 26th November 2025. However, the letter indicated that the investigations were not over and therefore her half salary, withheld during the interdiction would not be paid to her until the conclusion of the case. The Claimant protested vide a letter dated 16 th December, 2025 but the same was ignored. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 2

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5. On 19th February 2026, she filed this suit challenging the interdiction, continued withholding of her half salary and violation of her constitutional rights. By a statement of claim dated 18th February 2026, she prayed for the following reliefs: a) A declaration reduction of that the Respondent’s the Claimant’s salary, withholding of allowances and pension, placement on redeployment payroll indefinite and were discriminatory removal interdiction, from unlawful, and in the arbitrary, breach of the Claimant’s employment rights. b) An Order directing the Respondent to immediately reinstate the Claimant to her substantive position as Director, Human Resource Development or an equivalent position without loss of rank, remuneration, or benefits. c) An Order directing the Respondent to reinstate the Applicant onto the payroll ELRC CAUSE NO. E171 OF 2026 RULING PAGE 3

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and to release allowances, all withheld pension salaries, contributions and related arrears accrued from May, 2024 todate. d) An Order directing the Respondent to solely bear all penalties, interest and financial losses arising from the delayed payment of salaries including those related to bank loans or other third-party obligations. e) A restraining Order barring the Respondent from redeploying, demoting, transferring, or altering the Claimant’s duties or role except in accordance with the law and due process. f) A restraining Order prohibiting the Respondent from any further arbitrary, retaliatory or unlawful action against the Claimant. g) In the alternative and without prejudice to prayers (a) to (f) above, a declaration to ELRC CAUSE NO. E171 OF 2026 RULING PAGE 4

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issue that the Respondent’s actions of placing the Claimant on indefinite interdiction and subsequently removing her from the payroll without notice or hearing constitute dismissal and amounts to unfair termination. h) Damages for wrongful and unfair termination equivalent to 12 months gross salary totaling to Kshs.2,740,200. i) Damages for violation of the Claimant’s rights to equality discrimination, and inherent freedom human from dignity and fair labour practices under Articles 27, 28 and 41 of the Constitution of Kenya respectively. j) Accrued and unpaid salaries and allowances amounting to Kshs.2,392,850. k) One month’s salary in lieu of notice – Kshs.228,350. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 5

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l) Costs of the suit, interest on costs and interest on (h) to (k) from the date of termination till full payment. m) Certificate of service. n) Any other relief that this Honourable Court may deem fit to award. 6. Simultaneously with the suit she filed, a Notice of Motion dated 18th February 2026 seeking the following orders: a) That this matter be certified as urgent and be heard ex parte in the first instance. b) That pending the hearing and determination of this application inter partes, an ex-parte order be and is hereby issued compelling the Respondent to immediately reinstate the Applicant onto the payroll and to release all withheld salaries, allowances, pension contributions and related arrears accrued from May 2024 to-date. c) That pending the hearing and determination of this Application inter partes, an ex-parte order be and is hereby issued directing the ELRC CAUSE NO. E171 OF 2026 RULING PAGE 6

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Respondent to solely bear all penalties, interest and financial losses arising from the delayed payment of salaries including those related to bank loans and other third-party obligations. d) That pending the hearing and determination of this Application inter partes, an ex-parte order be and is hereby issued compelling the Respondent to immediately reinstate the Applicant to her substantive position as Director, Human Resource Development, or an equivalent role consistent with her grade, job group, experience and professional qualifications. e) That pending the hearing and determination of this Application inter partes, an ex-parte order be and is hereby issued restraining the Respondent from redeploying, transferring or otherwise altering the Applicant’s duties or professional role. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 7

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f) That pending the hearing and determination of this Application inter partes, an ex-parte order be and is hereby issued restraining the Respondent whether acting by itself, its agents, or servants from taking any further arbitrary, retaliatory or unlawful action against the Applicant including suspension, interdiction or withholding of salary and allowances. g) That pending the hearing and determination of the suit filed herewith, this Court do issue interim orders in like terms as prayer (a), (b), (c), (d), (e) and (f) above. h) That costs for this Application be provided for. 7. The Motion was supported by an Affidavit sworn by the Claimant on the even date and it was opposed by the respondent through a Replying Affidavit sworn by the respondent’s County Secretary, Mr. John M. Maingi on 18 th March 2026. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 8

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8. The respondent’s case in brief, was that the Claimant had refused to report to a new department she was redeployed to after the lifting of her interdiction. The respondent contended that the investigations in the Claimant’s substantive division had not been finalized and reinstating her to that position was likely to interfere with investigations. It denied the alleged violation of the Claimant’s right and maintained that her salary will be paid if she is not culpable upon conclusion of the investigations. It contended that the interdiction was in line with its policies and explained that the Claimant had been served with a show cause on 5 th March 2026 for absconding duty after being posted to the new department as Director, Human Resource Management and Development in the Department of Health Services. 9. By a letter dated 16th March 2026, the Claimant responded to the show cause letter through her Advocate protesting the disciplinary process while this suit was pending in court. She also indicated that she was ready to resume duty in her substantive position and demanded release of her withheld salary. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 9

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10. The respondent did not accept the Claimant’s demands and went ahead to serve her with a letter dated 7 th May 2026 inviting her to a disciplinary hearing on 21 st May 2026. The hearing date was rescheduled to 4 th June 2026 and by another Notice of Motion dated 2 nd June 2026, the Claimant sought the following orders: a) That this matter be certified as urgent and be heard ex parte in the first instance. b) That pending determination of the hearing and this Application inter partes, an ex-parte order be and is hereby issued staying, suspending, and/or halting the disciplinary proceedings initiated by the Respondent against the Applicant and scheduled for 4th June, 2026 or on any other date whether before or after the said date and restraining the respondent from taking any further step, action or proceeding in the said disciplinary process against the Applicant or in any other ELRC CAUSE NO. E171 OF 2026 RULING PAGE 10

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manner altering or interfering with the Applicant’s employment status. c) That pending determination of the hearing and this Application inter partes, an ex-parte order be and is hereby issued restraining the respondent whether by itself, disciplinary its agents, committee servants from or convening, continuing with, or in any other manner proceeding with any disciplinary hearing or disciplinary process against the Applicant arising from the subject matter of this suit or interfering in any with other the manner Applicant’s employment status. d) That upon hearing and determination of this Application, an Order be and is hereby issued restraining the Respondent whether by itself, its agents, servants or disciplinary committee from instituting, continuing with, or in any manner pursuing ELRC CAUSE NO. E171 OF 2026 RULING PAGE 11

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any disciplinary process against the Applicant in respect of the issues forming the subject matter of this suit including interdiction, re-deployment, withholding of salary and alleged absconding of duty or in any other manner interfering with the Applicant’s employment status pending the hearing and determination of this suit. e) That costs for this Application be provided for. 11. The Motion was supported by the Claimant’s Affidavit sworn on the even date and it was opposed by the respondent through the Replying Affidavit sworn on 9 th June 2026 by the respondent’s County Secretary, Mr. John M. Maingi. The Claimant obtained interim orders halting the internal process before they were completed. 12. The respondent contended that the suit by the Claimant was premature and the court lacks jurisdiction to hear and determine the dispute herein at the first instance, pursuant to Article 234(2)(i) of the Constitution, ELRC CAUSE NO. E171 OF 2026 RULING PAGE 12

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Section 87(2) of the Public Service Commission Act and Section 77 of the County Government Act. It further averred that the suit offends the doctrine of exhaustion under Section 9(2) of the Fair Administrative Actions Act. 13. The Claimant filed a further affidavit dated 15 th July, 2026 contending that the court has jurisdiction as there is no decision made by the County Public Service Board of being appealed to the Public Service Commission. further averred that the County Human She Resource Management Advisory Committee (CHRMAC) has no mandate to conduct disciplinary hearings but only the power to advise the Authorized Officer regards various Human Resource matters including discipline. Besides, some of the CHRMAC members were junior to her. 14. She further averred that she moved the court by the instant suit to protect her employment and her rights as an employee following the prolonged interdiction of over twenty (20) months, withholding of her salary and allowances, unlawful redeployment, and removal from ELRC CAUSE NO. E171 OF 2026 RULING PAGE 13

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payroll. She contended that unless the impugned disciplinary proceedings are restrained, she will suffer irreparable harm. Submissions and determination 15. The two Motions were disposed of by written submissions. Having considered the pleadings, Motions, Preliminary Objection Affidavits and the submissions, the main issues for determination are: a) Whether the suit is premature and the court lacks jurisdiction to determine it in the first instant. b) Whether the Claimant’s Motion dated 18th February 2026 and the other dated 2nd June 2026 should be allowed as prayed. Jurisdiction 16. The Respondent objected to the suit contending that the court has no jurisdiction to entertain the suit in the first ELRC CAUSE NO. E171 OF 2026 RULING PAGE 14

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instance pursuant to Article 234(2)(i) of the Constitution, Section 85 and 87(2) of the Public Service Commission Act, Section 77(2) of the County Government Act and Section 9 of the FAA Act. 17. The said provisions are copied here below: Article 234 (2) of the Constitution “234. Functions and Powers of the Public Service Commission; (2) The Commission shall, (i) hear and determine appeals in respect of county governments’ public service.” Section 77(2) of the County Governments Act provides, “(1) Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service commission (in referred to “Commission”) as the this Part against the decision. (2) The Commission shall entertain appeals on any decision relating to employment ELRC CAUSE NO. E171 OF 2026 RULING PAGE 15

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of a person in a county government including a decision in respect of – (a) recruitment, appointment selection, and qualifications attached to any office; Section 85(c) of the Public Service Commission Act “85. The Commission shall, in order to discharge its mandate under Article 234(2) (i) of the Constitution, hear, determine appeals in respect of any decision relating to engagement of any person in a County Government including a decision in respect of – (c) Disciplinary control” Section 87(2) of the Public Service Commission Act “A person shall not file any legal proceedings in any Court of law with respect to matters within the jurisdiction of the Commission to hear and government determine appeals from county public service unless the procedure provided for under this Part has been exhausted.” Section 9 of the Fair Administrative Action Act ELRC CAUSE NO. E171 OF 2026 RULING PAGE 16

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“1. Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to subordinate the high court Court upon or which to a original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. 2. The high Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. 3. The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1). 4. Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.” ELRC CAUSE NO. E171 OF 2026 RULING PAGE 17

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18. The above provisions are clear that County Public Service Officer who is aggrieved by decision by the County Public Service Board regarding any matter of his employment in County service may appeal against that decision to the Public Service Commission. The Court of Appeal in the Secretary, County Public Service Board & Another V. Hulbhai Gedi Abdille [2017] KECA 643 (KLR), held that: “20. Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.” 19. The Court of Appeal in the above decision went ahead to affirm its decision in the case of Speaker of the ELRC CAUSE NO. E171 OF 2026 RULING PAGE 18

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National Assembly Vs James Njenga Karume [1992] eKLR, and observed that: “There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The Section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance.” 20. The above decision is binding on me. The Claimant’s grievances relate to her employment by the respondent, prolonged interdiction, lifting of the interdiction without payment of her withheld half salary, and finally redeployment to another position which she considers to be a demotion without justification. The said grievances clearly fall within the internal appeal procedure availed by Section 77 of the County Government Act and ELRC CAUSE NO. E171 OF 2026 RULING PAGE 19

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Section 85 and 87 of the Public Service Commission Act. 21. No special circumstances have been tabled by the Claimant to justify the failure to exhaust the said alternative mechanisms of dispute settlement before filing the suit. She has however, argued in the further affidavit and written submissions that the Court retain residential jurisdiction to grant interlocutory orders to safeguard the subject matter and prevent abuse pending the exhaustion of the alternative procedure. 22. She fortified the foregoing submissions by Rule 56(5) of the Employment and Labour Relations Court Procedure Rules, 2024 which provides that: “Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms – (b) want of exhaustion of such alternative dispute resolution mechanisms shall not operate as a bar to a suit for application for interim orders or alleging unconstitutionality or unlawfulness of the action, omission, decision or other matter ELRC CAUSE NO. E171 OF 2026 in dispute pending RULING such PAGE 20

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exhaustion; and (c) a suit filed prior to exhaustion such alternative of dispute resolution mechanisms may be styed and not struck out on account of such exhaustion.” 23. She further cited the case of Joseph Mutisya Laban Vs. Machakos County Assembly Service Board & 2 Others [2025] KEELRC 1160 (KLR), where Manani, J held: “That said, the law recognizes that not all disputes are suitable for resolution through alternative dispute resolution mechanisms. As such, the court is permitted to admit some disputes for adjudication notwithstanding that the parties have not submitted to the existing alternative dispute resolution procedures. One such scenario where courts have done so is with respect to requests for interim reliefs which are intended to preserve the status quo pending resolution of a dispute. It is generally acknowledged that most quasi-judicial bodies lack the mandate to issue interim reliefs such as injunctions and conservatory orders. As such, courts have often intervened to fill the lacuna by allowing parties who are required to submit to alternative ELRC CAUSE NO. E171 OF 2026 dispute resolution RULING PAGE 21

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processes before approaching them (the courts) to nevertheless file matters directly before them (the courts) in pursuit of the aforesaid interim reliefs. The above approach has since received regulatory backing in some instances for example in Rule 56(5) of the Employment and Labour Relations Court (Procedure) Rules, 2024.” 24. Having found that there is an alternative procedure availed by the statute for the Claimant to pursue her claims, I must hold that the jurisdiction of this court under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act seems not to have been postponed, but altogether taken away. 25. I say so because the Public Service Commission Act does not provide for any right of appeal or other procedure to challenge the merit of the outcome of the alternative statutory mechanism. Section 89 of the Public Service Commission Act provides: “1. Any person who is affected by the decision of the Commission made under this part may enforcement by ELRC CAUSE NO. E171 OF 2026 file the decision for the Employment and RULING PAGE 22

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Labour Relations Court provided for under Article 162(2)(a) of the Constitution. 2. Any person who refuses, fails or neglects to implement the Commission’s decision is liable accordance to disciplinary with the action applicable in laws, including removal from office.” 26. In the case of Claims under Work Injury Benefit Act (WIBA), the Parliament was careful not to lock out a section of the population from accessing the court. Whereas Section 16 of the Act provided for alternative statutory mechanism for work injury claims, it allowed for a review before the Director and appeal before this court under Section 51 and 52. 27. However, the Public Service Commission Act completely locks out employees of the devolved governments from accessing court for adjudication of their grievances against their employers on merits. It only provides for appeal and review before the Public Service Commission and no access to court to challenge the merits of the outcome. As observed above, Section 89 only allows ELRC CAUSE NO. E171 OF 2026 RULING PAGE 23

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access to court only for enforcement of the decision and nothing more. 28. The situation is not the same with civil servants in the National government who have free access to this court to challenge the decision of their employer on both merits and procedure. I will say no more but leave the matter to those who represent workers in the devolved governments to consider the legal gap and/or exclusion and propose law reform. Notice of Motion dated 18th February, 2026 and 2nd June, 2026 29. The gist of the two Motions is that the Claimant should be reinstated to her substantive position or any other equivalent role consistent with her grade, job group, experience and professional qualifications pending the determination of the suit. The Motions further seek for release of the claimant’s salary withheld from her during her interdiction that was lifted on 5 th December, 2025. Finally, the motions seek for injunction to restrain the respondent from undertaking disciplinary proceedings and ELRC CAUSE NO. E171 OF 2026 RULING PAGE 24

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taking any disciplinary action against the claimant pending the hearing and determination of the suit. 30. Having considered the prayers sought by statement of claim dated 18th February 2026, it is without doubt that the same prayers are sought in the Motions under review. A determination of the prayers in the Motion is likely to prejudice the final decision after the hearing. However, the issue of salary withheld during the interdiction seems to me an obvious matter. The interdiction was lifted without any changes either by the employer or police. The disciplinary proceedings instituted are in relation to absconding after the lifting of the interdiction. Therefore the withheld salary ought to be released to the Claimant forthwith to mitigate losses related to her loans to third parties. 31. As for rest of the prayers sought, the Public Service Commission is best suited to adjudicate upon. In the meantime, justice dictates that I freeze all disciplinary proceedings against the Claimant until the final determination of the dispute herein by the Public Service Commission under Section 77 of the County Government ELRC CAUSE NO. E171 OF 2026 RULING PAGE 25

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Act. I also restrain the respondent from replacing the claimant from her substantive position of Director, Human Resource and Development pending the final determination of the dispute herein by the Public Service Commission. This file shall remain open until the decision of the Public Service Commission on the dispute herein is received. Conclusion 32. I have found that the dispute herein falls within the alternative jurisdiction of the Public Service Commission under Section 77 of the County government Act. I have also found that the Court has no jurisdiction in the first instant to determine the merits of decisions emanating from the decisions of employers in the devolved government by dint of Section 85, 87 and 89 of the Public Service Commission Act and left that finding to the parties concerned to consider pursuing law reform. Finally, I have found that the court has residual jurisdiction to grant interlocutory reliefs pending the determination of disputes ELRC CAUSE NO. E171 OF 2026 RULING PAGE 26

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through statutory alternative procedures. Accordingly, I make the following orders: a) The dispute herein is referred to the Public Service Commission for hearing and determination on merits. b) The Public Service Commission is directed to give priority to this matter considering the delay it has taken from 2024 when the claimant was sent on compulsory leave for 10 days and later placed on an indefinite interdiction. c) The respondent is restrained from appointing any person to replace the Claimant from her substantive Resource position and of Director, Development Human pending the outcome of the dispute which is now referred to the Public Service Commission. d) The respondent is restrained from undertaking any disciplinary proceedings and action against the Claimant pending the outcome of the dispute now referred to the Public Service Commission. ELRC CAUSE NO. E171 OF 2026 RULING PAGE 27

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e) The respondent is ordered and directed to pay the Claimant all the salary withheld from her during the interdiction period from March 2024 to December 2025 when it was lifted. f) Costs of the Motions shall abide the decision of the Public Service Commission. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF OCTOBER, 2026. ONESMUS MAKAU JUDGE Appearance: Orenge for Applicant Ithondeka for Respondent ELRC CAUSE NO. E171 OF 2026 RULING PAGE 28

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