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ELRCPartially AllowedCause No. E016 of 2025· [2026] KEELRC 2598 (KLR)

Evans Ogutu Ouma v Migori County Assembly Service Board & another

Employment & Labour Relations Court of Kenya
28 September 2026
3,511 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a Migori County Assembly officer 12 months' pay after finding his two dismissals unfair because the disciplinary process kept changing the allegations.

What this practically means

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Executive summary

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The Claimant, formerly Principal Finance Officer/Principal Accountant of the 2nd Respondent employed by the 1st Respondent, sued over two summary dismissal letters dated 4th July 2022 and 1st December 2023, alleging unlawful termination, arbitrary administrative leave, denial of access to his workplace, breach of status quo orders issued in Kisumu ELRC Petition No. E032 of 2022, publication of his photograph in the Standard newspaper, and denial of a Certificate of Service. He sought declarations, quashing orders, reinstatement, salary arrears, maximum compensation, notice pay, leave pay, pension accounting, general damages, costs and interest. The Respondents entered appearance but filed no Response; the matter proceeded on the Claimant's uncontroverted testimony and written submissions. The Respondents' res judicata objection, founded on prior Kisumu proceedings, failed because the Court had already ruled on 28th April 2026 that the suit was not res judicata, the earlier matters having been struck out on jurisdictional grounds. Holding that the disciplinary process was predetermined to retrospectively justify the earlier removal, and that the show-cause allegations, hearing matters and dismissal reasons were materially different, the Court found both dismissals unlawful, unfair and unconstitutional contrary to section 41 of the Employment Act, Articles 41, 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act. Reinstatement was declined owing to bad blood and the political atmosphere; the Court awarded twelve months' compensation (Kshs. 2,331,240/-), one month's notice pay, 73 accrued leave days (Kshs. 384,850.15), a Certificate of Service, costs and interest, while disallowing salary arrears and directing the Claimant to pursue pension claims before the Retirement Benefits Tribunal.

Key legal issues

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01

Res judicata and competence of the suit

Holding

The suit is not res judicata; the issue was already determined in the Court's ruling of 28th April 2026 and could not be relitigated

Reasoning

The Court noted its earlier ruling found the prior matters were struck out on preliminary and jurisdictional grounds and never determined on the merits, and that the Claimant had exhausted the alternative remedy before the Public Service Commission. Having been determined, the issue was not open for determination again in this suit.

02

Unfairness of the two summary dismissals

Holding

Both dismissals were unlawful, unfair and unconstitutional, failing substantive and procedural fairness

Reasoning

The second dismissal followed a predetermined disciplinary process meant to retrospectively justify the earlier removal; the show-cause allegations, hearing matters and dismissal reasons were materially different, contrary to section 41 of the Employment Act, audi alteram partem, Articles 41, 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act.

p. 17
03

Appropriate remedy

Holding

Reinstatement refused; maximum 12 months' compensation under section 49(1)(c) awarded, plus notice pay, accrued leave pay and certificate of service

Reasoning

Given the bad blood between the parties and the political atmosphere that caused the Claimant's woes, reinstatement was inappropriate. The Court awarded the statutory maximum of twelve months' compensation, noting the law caps the award, and relied on Kenfreight v Nguti supporting maximum compensation.

p. 19

Legal principles established

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  • A dismissal is procedurally unfair where the allegations in the show-cause letter, the matters considered at the disciplinary hearing and the reasons relied upon in the dismissal letter are materially different, denying the employee a chance to answer the case against him
  • Reinstatement is not an appropriate remedy where bad blood and political circumstances have poisoned the employment relationship; compensation is preferred

Court orders

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  1. 1.A declaration that the termination meted out was unfair and unlawful
  2. 2.12 months' compensation in terms of section 49(1)(c) of the Employment Act, amounting to Kshs. 2,331,240/-
  3. 3.One month's salary as notice - Kshs. 194,270/- in lieu of notice under section 35 of the Employment Act
  4. 4.73 accrued leave days amounting to Kshs. 384,850.15
  5. 5.A certificate of service in terms of section 51
  6. 6.Costs of the suit
  7. 7.Interest on the compensation, notice pay and leave pay at court rates from the date of judgment till payment in full
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (ELRC); suit competence previously confirmed in ruling of 28th April 2026

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, "Evans Ogutu Ouma v Migori County Assembly Service Board & another", Case Analysis (2026). Cause No. E016 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2598/eng@2026-09-28

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