Atemba v Kakamega County Assembly Service Board & another (Cause E007 of 2022) [2023] KEELRC 763 (KLR)

The jurisdiction objection surfaced only in further submissions, but the court treated it as a pure point of law. It held that extending PSC jurisdiction to County Assembly Service Boards would undermine separation of powers at both levels of government, that the County Government Act provides no clear appeal mechanism from County Assembly Service Board decisions, and that PSC regulations cannot oust constitutional and statutory provisions, applying Speaker v Karume and Rika J's decision in John Mwivithi Mutie.

The court found no prior investigation, no show-cause letter, and a Board resolution for only 60 days. There was no Board authorisation of the extension; the claimant's illness did not justify it, and half-pay suspension made it punitive. No investigation report was produced, leading to the conclusion the suspension lacked valid reasons and breached section 4(1) of the Fair Administrative Actions Act.

Both experts were qualified and their reports conflicted, so the court weighed the totality of evidence. The claimant immediately denounced the letter, the minutes suggested the Board met on 10th February after his denunciation email, and the respondents never disclosed who delivered the letter. On a balance of probabilities the resignation was not genuine and accepting it without a hearing was unprocedural.

Having found the extension unlawful and no resignation, the court found merit in the claim. It ordered lifting of the suspension and immediate resumption of work without loss of benefits, payment of full salary and benefits from 8th February 2022 to judgment, costs and interest, with a 14-day stay. The initial suspension was nonetheless upheld, so compensation of twelve months' salary was not awarded as such.