Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2025] KEELRC 2763 (KLR)
The bottom line
#Kenya's Employment Court ordered Busia and Bungoma counties to transfer a transferred clinical officer's records, pay over a decade of salary arrears, and return him to duty.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction, exhaustion and limitation
The PO on jurisdiction was already dismissed by Keli J on 24 October 2024 and that ruling stands as res judicata; the claim crystallised in 2022 when salary and duties ceased, so the March 2024 petition was within time.
Counsel for the 1st respondent re-agitated exhaustion and limitation in submissions, but the earlier ruling had not been appealed or reviewed, so the court declined to revisit it. On limitation, the court held the cause accrued when the 2nd respondent stopped paying and assigning work in 2022, well within three years, and invoked Article 159(2)(d) against technicality.
Existence of employer-employee relationship with the 2nd respondent
The petitioner transferred to and remains an employee of the 2nd respondent from 11 September 2012, proved by unrebutted documentary evidence.
The petitioner produced the 2009 appointment, confirmation letter, reporting confirmation of 14 September 2012, leave approval of 21 March 2018, and letters of 2017-2019 from the 2nd respondent's officers. The respondents produced no rebuttal evidence and did not call the authors of the letters. The court condemned the 2nd respondent's denial as an abuse of the court's intelligence.
Violation of Articles 41 and 47
Both respondents subjected the petitioner to unfair labour practices and unfair administrative action.
The 1st respondent failed to forward employment records despite repeated requests, while continuing to pay salary; the 2nd respondent stopped allocating duties and withheld salary at the undisputed gross rate of Kshs98,000/= with no suspension, dismissal or disciplinary process. This breached Articles 41(1) & (2)(a)(b) and 47.
Whether the Anarita Karimi Njeru threshold was met
The petitioner pleaded and proved the violations with precision and commensurate evidence.
Relying on Anarita Karimi Njeru and Mumo Matemu, the court found the petition particularised the constitutional provisions and the manner of infringement, supported by undisputed documentary evidence, meeting the requisite standard.
Legal principles established
#- An employer must pay an employee for services rendered; withholding salary and duties without lawful cause constitutes unfair labour practice under Article 41 and unfair administrative action under Article 47
- An employee cannot be blamed for an employer's failure to effect transfer documentation, and cannot be made to refund salaries erroneously paid between public bodies
- Compelling orders are not confined to judicial review proceedings and may issue in the ELRC in appropriate terms
Court orders
#- 1.A declaration that the failure by the 1st respondent to forward the IPPD information and personal file upon the petitioner's transfer contravened Article 41 of the Constitution and violated his right to fair labour practices
- 2.Orders of mandatory injunction and specific performance compelling the respondents, jointly and severally, to transmit the petitioner's IPPD information, personal file and certificate of last pay from the 1st to the 2nd respondent within 30 days
- 3.Orders of mandatory injunction and specific performance compelling the 2nd respondent to pay all salary arrears from September 2012 to judgment less Kshs3,275,366/=, which sum to be applied to reimburse the 1st respondent, within 30 days
- 4.An order compelling the 2nd respondent to incorporate the petitioner into its payroll within 30 days, continue paying his monthly salary and allocate duties forthwith
- 5.The respondents shall jointly and severally meet the petitioner's costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2025] KEELRC 2763 (KLR)", Case Analysis (2025). Petition dated 19th March 2024 (ELRC, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2763/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.