Hussein & 4 others (Suing on their Behalf and all other Aggrieved Employees) v Garissa County Public Service Board & 4 others (Constitutional Petition E205 of 2022) [2023] KEELRC 1500 (KLR)
The bottom line
#Garissa County employees claiming unpaid salaries got an independent audit and payment deadlines, but the Governor and County Secretary were cleared of contempt.
What this practically means
#Executive summary
#Key legal issues
#Prematurity/exhaustion of remedies (preliminary objection)
The preliminary objection fails; the dispute is not about terms and conditions of service but about payment of earned salaries under running contracts, so no exhaustion of Public Service Commission remedies was required
The court distinguished a dispute over terms and conditions of service (which must go to the PSC first) from a grievance that monthly salaries have been withheld under subsisting contracts. The petitioners sought specific performance of their contracts of service. The 4th respondent failed to show a decision constituting a dispute of remuneration that would render the petition premature.
Whether the Governor and County Secretary were in contempt
Not in contempt; the contempt applications are dismissed
Although served and aware of the orders, by the consent of January 25, 2023 verification became a condition precedent to payment. The verification report yielding 1054 verified employees was shown to suffer want of integrity without rebuttal, so deliberate disobedience was not established to the criminal standard of proof required in contempt proceedings.
Review and striking out of the staff verification report
Review prayers fail as misconceived, but the verification report 2023 is struck out and the order adopting it set aside, subject to an independent PSC verification audit
The parties' consent made verification a precondition to payment, varying the December 7 order. The court found the report suffered want of integrity. Pending hearing of the petition, the report was struck out and the PSC directed to conduct an independent verification at the 2nd respondent's cost, with payment deadlines and a moratorium on new recruitment to affected cadres.
Legal principles established
#- Contempt proceedings require establishment akin to a criminal proceeding on a standard beyond reasonable doubt
- Parties are bound by their consent orders; a consent can vary an earlier court order
- Where a verification exercise was a condition precedent to payment, failure of a credible verification bars a contempt finding for non-payment
Court orders
#- 1.The 4th respondent's preliminary objection is dismissed
- 2.The two contempt applications for the petitioners are dismissed but subject to order (3)
- 3.Pending the hearing and determination of the petition, the staff verification report 2023 with subsequent reviews returning 1054 employees verified as due for payment is struck out and the Court order adopting it is set aside
- 4.The petitioners and other aggrieved employees be subjected to an independent verification or audit process undertaken by the Public Service Commission at the instance and cost of the 2nd respondent as enabled by the 3rd and 4th respondents
- 5.The verification or audit be commenced forthwith to be completed by August 1, 2023 and all employees verified as valid be paid all due outstanding salaries and allowances by September 1, 2023, failing interest at court rates from September 1, 2023 till full payment
- 6.Until the verification or audit is completed and the report filed and served, the 1st, 2nd, 3rd and 4th respondents are prohibited from recruiting, appointing, or promoting any other persons to positions or cadres held by petitioners
- 7.All parties shall cooperate by providing documents or information and attending to enable the Commission undertake the verification and audit expeditiously
- 8.Each party shall bear own costs of the attendant proceedings
- Jurisdiction invoked
- Sections 12 and 13 of the Employment and Labour Relations Court Act; Section 5 of the Judicature Act; inherent power of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein & 4 others (Suing on their Behalf and all other Aggrieved Employees) v Garissa County Public Service Board & 4 others (Constitutional Petition E205 of 2022) [2023] KEELRC 1500 (KLR)", Case Analysis (2023). Petition dated November 24, 2022 (with contempt applications dated December 13, 2022 and March 28, 2023; application dated April 17, 2023; preliminary objection dated April 24, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1500/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.