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ELRCPartially AllowedPetition dated 19th March 2024 (ELRC, Kakamega)· [2025] KEELRC 2763 (KLR)

Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2025] KEELRC 2763 (KLR)

Employment and Labour Relations Court
9 October 2025
7,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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A clinical officer appointed by the Public Service Commission in 2009 and posted to Teso North District Hospital (1st respondent, Busia) was transferred to Kimilili District Hospital under the 2nd respondent (Bungoma) with effect from 11 September 2012 and reported on duty. His personal file, IPPD records and Last Pay Certificate were never transmitted, and the 1st respondent continued paying his salary - some Kshs3,275,366/= - until July 2022, when the 2nd respondent stopped assigning him duties and paying salary. He petitioned the ELRC claiming violations of Articles 41 and 47, seeking declarations, mandamus to compel transmission of records, payment of arrears, and placement on the 2nd respondent's payroll. A preliminary objection on jurisdiction was dismissed by Keli J on 24 October 2024, and the court declined to revisit exhaustion and limitation arguments, holding the claim crystallised in 2022 within the three-year window. On the evidence - including leave approvals and correspondence by the 2nd respondent's officers confirming employment, none rebutted - the court found the petitioner had been an employee of the 2nd respondent since September 2012 and that both respondents subjected him to unfair labour practices and unfair administrative action. The court granted declarations, mandatory injunctions and specific performance: records to be transmitted within 30 days; the 2nd respondent to pay all salary arrears from September 2012 less Kshs3,275,366/=, which sum reimburses the 1st respondent; and the petitioner to be placed on the payroll and assigned duties. Prayer (b), a declaration over the inter-county refund dispute, was denied. Costs awarded jointly and severally against the respondents.

Key legal issues

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01

Jurisdiction, exhaustion and limitation

Holding

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.

Reasoning

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.

p. 7
02

Existence of employer-employee relationship with the 2nd respondent

Holding

The petitioner transferred to and remains an employee of the 2nd respondent from 11 September 2012, proved by unrebutted documentary evidence.

Reasoning

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.

p. 9
03

Violation of Articles 41 and 47

Holding

Both respondents subjected the petitioner to unfair labour practices and unfair administrative action.

Reasoning

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.

p. 10
04

Whether the Anarita Karimi Njeru threshold was met

Holding

The petitioner pleaded and proved the violations with precision and commensurate evidence.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.The respondents shall jointly and severally meet the petitioner's costs

Authorities

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Legislation

  • Constitution of KenyaArticles 21, 22, 23, 41, 47, 159(2)(d), 162(2), 165
  • Employment and Labour Relations Court ActSections 3, 12
  • County Governments ActSections 56, 57, 77
  • Public Service Commission ActSection 87
  • Employment ActSections 9, 90 (now 89)
  • Evidence ActSections 107, 108, 109

Cases cited (10)

  • Anarita Karimi Njeru V Republic
    (1976-1980) KLR 72 / 1272
  • Mumo Matemu V Trusted Society of Human Rights Alliance & 5 Others
    (2012) eKLR
  • Stephen Nyarangi Onsuma & Another V George Magoha & 7 Others
    (2014) eKLR
  • Communications Commission of Kenya & 5 Others V Royal Media Services & 5 Others
    (2014) eKLR
  • Shem Onywera V County Government of Kisii
    (2018) eKLR
  • Martin Kabuthi Mwangi V County Government of Laikipia
    (2019) eKLR
  • Augustine Gakure Monyo V County Government of Murang'a
    (2016) eKLR
  • Stanley Mungai Muchai V National Oil Corporation of Kenya
    (2012) eKLR
  • Kenya County Government Workers Union V County Government of Nakuru
    (2017) eKLR
  • Kenneth Karisa Kasemo V Kenya Bureau of Standards
    (2013) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

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, "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.