Namayi v Public Service Commission & 3 others (Constitutional Petition E217 of 2025) [2026] KEELRC 2425 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for desertion, ruling that a worker who ignores recall to their parent employer can only claim pension actually earned.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner deserted duty
Yes - he was aware of the recall and the decline of retention, yet took up a contract with the County without the employer's consent, showing no intention to return
The court found the petitioner was aware of the communication requiring him to return to the National Treasury and of the rejection of the retention request, but nonetheless willingly took up a three-year contract with the County Government of Busia without the employer's consent. That contract was not a secondment as it was issued independently of the parent employer, so his continued service with the County from the required reporting date constituted desertion.
Whether the dismissal was substantively and procedurally fair
Yes - the reason was valid and the disciplinary process, including a hearing before HRMAC, was faultless
The reason for dismissal (desertion) was valid. The petitioner responded to the show-cause letter, appeared before the Human Resource Management Advisory Committee, and was informed of his rights to representation and witnesses. The court found no fault with the disciplinary process and therefore dismissed the constitutional claims on fair hearing and fair administrative action.
Entitlement to terminal dues, pension and anticipatory wages
Only pension actually earned in service of the 1st Respondent is due, excluding the period under the illegal County contract; anticipatory wages refused
Relying on the Supreme Court decision in Ngokonyo v Telkom Kenya, the court held that permanent and pensionable employment does not guarantee tenure until retirement and that claims for anticipatory salaries lack statutory foundation. However, pension is a right accrued in service, so the Petitioner is entitled to his earned pension in the 1st Respondent's service, excluding the period under the County contract.
Legal principles established
#- Anticipatory or future salaries lack statutory foundation under the Employment Act and cannot be awarded
- Pension is a right of the employee accrued in service
- An officer who defies a recall to the parent employer and takes up a contract with another employer without consent is deemed to have deserted duty
Court orders
#- 1.Declaration that pension is a right of the employee accrued in service; the Petitioner is entitled to his earned pension in the service of the 1st Respondent save for the period he was illegally under contract with the 3rd Respondent
- 2.Dismissal of the Petition for lack of merit in respect of all other prayers
- 3.No order as to costs
- 4.File marked as closed
- Jurisdiction invoked
- Articles 41, 47 and 23 of the Constitution (petition for violation of fundamental rights in employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namayi v Public Service Commission & 3 others (Constitutional Petition E217 of 2025) [2026] KEELRC 2425 (KLR)", Case Analysis (2026). NBI ELRC Pet. No. E217 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2425/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.