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ELRCDismissedNot stated in the judgment as provided

Ombati v Governor, Nyamira County & another (Cause E001 of 2025) [2025] KEELRC 1814 (KLR)

Employment and Labour Relations Court
23 June 2025
3,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a fired county health executive's case, finding his termination for allegedly misleading the Governor about drug deliveries was fair.

What this practically means

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Executive summary

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The Claimant, formerly the Nyamira County Government CECM for Health Services, sued the Governor and County Government challenging his termination on 2nd August 2023 after he allegedly misled the Governor during a drugs commissioning ceremony on 11th July 2023 that an entire consignment from MEDS had been delivered when some batches had not. He sought declarations of unfair termination, gratuity, notice pay, 12 months' compensation, payment for the unexpired 48 months of his contract, defamation damages, and a certificate of service. The Respondents, who filed a defence but never appeared or called a witness, argued breach of trust and res judicata on the strength of a prior Kisumu ELRC petition. The court, on the Claimant's submissions, first found it had jurisdiction, holding that a CECM's termination is a plain vanilla employment dispute and that the Court of Appeal's Omweno decision on County Public Service Board members was distinguishable; it applied the Garissa v Idriss Aden Mukhtar ruling that the Employment Act applies to state officers. It rejected the res judicata plea because the prior petition was struck out under the doctrine of constitutional avoidance and was never heard and determined on the merits. On the merits, however, the court found that a show cause notice was issued and answered, that the Claimant failed to connect the failed deliveries to the Maandamano protests, and that subsequent delivery without loss did not exonerate him. Finding both substantive and procedural fairness, the court dismissed the entire suit with no order as to costs because the Respondents failed to participate. Judgment delivered at Nairobi on 23rd June 2025 by Nzioki Wa Makau, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to entertain the claim (and whether it is a plain vanilla employment dispute)
  2. 2.Whether this matter is res judicata given the prior Kisumu ELRC Petition No. E024 of 2023
  3. 3.Whether the termination of the Claimant's employment was substantively and procedurally fair
  4. 4.Whether the Claimant is entitled to the reliefs sought
  5. 5.Who should bear the costs of these proceedings

Key legal issues

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01

Jurisdiction of the ELRC over termination of a County Executive Committee Member

Holding

The ELRC has jurisdiction; the Kakamega Omweno decision concerned County Public Service Board members and is distinguishable

Reasoning

The court accepted the Claimant's submission that the termination of a CECM is an ordinary employer-employee dispute, that the CECM office is not a constitutional office, and that the Court of Appeal decision in Governor, County Government of Kakamega v Omweno related to appointment of County Public Service Board members and was distinguishable. It relied on County Government of Garissa v Idriss Aden Mukhtar holding the Employment Act applies to state officers, and found jurisdiction under section 12(1) of the ELR Act.

p. 7
02

Res judicata

Holding

The matter is not res judicata; the prior petition was struck out, not heard and determined on the merits

Reasoning

The prior Kisumu ELRC Petition E024 of 2023 was struck out on the principle of constitutional avoidance, the court having viewed the issues as contractual rather than constitutional. A struck-out matter is distinguishable from a dismissed one and the issues, including the termination, were never heard and determined on merit, so the res judicata plea fails.

p. 5
03

Whether the termination was substantively and procedurally fair

Holding

The court found there was justification for the termination, i.e. both substantive and procedural fairness

Reasoning

A notice to show cause was issued and a response given. The Claimant allegedly misled the Governor during commissioning of drugs that the entire consignment had been delivered. The court found the Claimant failed to draw a nexus between the Maandamano protests and the failed deliveries, and that subsequent delivery without loss did not exonerate him. It therefore found justification for the termination.

p. 7
04

Entitlement to reliefs

Holding

The Claimant was not entitled to the reliefs sought

Reasoning

The Claimant had obtained a leave of absence from the Respondents and did not demonstrate non-payment of gratuity or salaries earned during his tenure. As the court found both substantive and procedural fairness, there was no basis to grant the reliefs for unfair termination, remainder of contract, or defamation.

Legal principles established

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  • Although the employment of state officers is regulated by the Constitution and relevant statutes, the Employment Act applies to them unless the Constitution, relevant statute or their contract provides better terms
  • A struck-out matter is not res judicata because it was not heard and determined on the merits
  • Termination of a CECM is a plain vanilla employment dispute within ELRC jurisdiction, distinguishable from cases on County Public Service Board members

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution and section 12(1) of the Employment and Labour Relations Act

Relief refused

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Declaration that the Claimant's termination was unfair

The court found there was justification for the termination

p. 7

Gratuity, one month's salary in lieu of notice, 12 months' compensation, payment for remainder of contract, gratuity for remainder of contract, general damages for defamation and Certificate of Service

Court found substantive and procedural fairness, and the Claimant had taken leave of absence from the Respondents and did not demonstrate non-payment of earned dues

p. 7

Costs

No order as to costs, since the Respondents failed to participate

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That is difierent and distinguishable from the plain vanilla case of employment dispute between the County Executive Committee Member such as the Claimant herein.
p. 7Jurisdiction - CECM termination as employment dispute
The fact that the deliveries were subsequently made and no loss sufiered, there was no justification for the Claimant to assert he did not intentionally mislead the 1st Respondent. I thus find there was justification for the termination.
p. 7Substantive fairness of termination
As the Court finds there was substantive and procedural fairness there is no justification to hold the termination was unlawful as such the suit is dismissed, albeit with no order as to costs since the Respondents have failed to participate.
Disposition and costs
For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
p. 6Test for fairness of termination (as cited by the Claimant)

Issues in the judgment

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minor

Case number and neutral citation of this judgment are not stated in the provided text; only the delivery date appears

minor

The second Respondent is not individually named in the judgment as provided, which refers only to 'the Respondents' and 'the 1st Respondent'

minor

Minor internal inconsistency in the judgment: the defence pleads 126 health facilities while the Claimant's averment refers to 129 facilities

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ombati v Governor, Nyamira County & another (Cause E001 of 2025) [2025] KEELRC 1814 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1814/eng@2025-06-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.