Owour v Kenya Revenue Authority & 4 others (Petition E232 of 2026) [2026] KEELRC 2442 (KLR)

The petitioner filed his Supporting Affidavit and avers that he is an employee of the 1st respondent having been appointed in April 2016. He served as the supervisor of the Domestic Taxes Department at West Nairobi Compliance Section. However, on 6 July 2026, the 2 nd Respondent, under instructions from the 1st Respondent, served the petitioner with a letter terminating his employment based on purported grounds of gross misconduct. The petitioner avers that his termination of employment was preceded by his arrest by officers of the Ethics and Anti-Corruption Commission (EACC) on 22 June 2026, and that he was later released on cash bail on 23 June 2026. The petitioner’s case is that on 1 July 2026, the 3rd and 5th Respondents demanded that he resign from his employment with the 1 st Respondent; failure to do so would result in his termination. Such was in breach of the petitioner’s rights under the Constitution and the law. The Respondents did not adhere to the Code of Conduct which guides the termination of employment. The termination of employment has greatly affected the petitioner by depriving him of his rights to fair administrative action, a fair hearing, and equality before the law. No disciplinary hearing was conducted contrary to Article 50 of the Constitution. The implementation of the termination letter dated 3 July 2026 resulted in the loss of livelihood at the hands of the 1 st Respondent's malicious officials. The petitioner is entitled to the protection of the law, and the orders sought should be issued, as held in Prof. G. Natuli v. Multi Med University, Cause No. 1200 of 2012. The petitioner also submitted that his application has met the threshold set out in Giella v Cassman Brown & Co. Limited (1973) E. A. 358. The petitioner’s rights under the Constitution have been violated, and he was denied the right to a hearing before the respondents issued him a notice terminating his employment. Although EACC officials arrested him, ELRC NAIROBI RULING PETITION NO. E232 OF 2026 2

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he has not been found guilty in any criminal proceedings. He was released upon arrest without being charged. The Respondents' actions have exposed the petitioner to distress, and he will be unable to care for himself and his family without medical cover. Unless the orders sought are issued, great injustice, loss, and prejudice will be visited upon the petitioner. His family depends on him for support, and without a salary, he cannot provide for them. The balance of convenience favours the Petitioner. Pending the hearing and determination of the petition, if salary is paid and the case is determined, he will refund it, but if he is exposed without a salary, the loss and damage will be irreparable. Thus, the orders sought should be issued. In reply, the respondents filed the Replying Affidavit of Roseline Mamo, Assistant Manager, Human Resource Management of the 1st Respondent. She avers that the orders sought in the application are already set out in the petition and should not be issued in the interim. The Petitioner has not established a prima facie case for the grant of the conservatory orders sought. The petitioner has grossly misrepresented facts; he is in abuse of court process in an attempt to force the issuance of an order of reinstatement. Mamo avers that the petitioner was an employee of the 1 st Respondent, but on 22 June 2026, he was apprehended by officers from the EACC while receiving a bribe of Ksh. 900,000 from a taxpayer in exchange for vacating and reducing the tax payable to the 1 st Respondent. The incident was publicised in the media. The 1st Respondent commenced investigations and on 26 June 2026 summoned Catherine Nduta Wangari, the taxpayer who had reported the Petitioner to EACC, to record statements with the 1 st Respondent. The 1st Respondent thus gave the Petitioner a chance to state his case. He wrote his statement on 30 June 2026. He conceded that he met the taxpayer at a bank, allegedly to collect a cheque. ELRC NAIROBI RULING PETITION NO. E232 OF 2026 3

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Mamo avers that the 1st Respondent does not accept cash or cheque payments from its officers because there is no provision in iTax for such payments. The Petitioner's response was therefore not plausible. Thus, following its independent investigations and the petitioner's statement, employment was terminated in terms of section 44(4)(g) of the Employment Act. Mamo avers that the orders sought cannot be issued in the interim, as the event sought to be conserved has since taken place. The termination of employment adhered to due process and the 1 st Respondent's human resource instruments. The conduct of the petitioner has resulted in breach of trust between him and the 1st Respondent, and an order of reinstatement will be prejudicial. The respondents thus submitted that, having been overtaken by events, the order of reinstatement cannot be issued retrospectively, and that the orders sought being conservatory in nature, they cannot be issued retrospectively. Termination of employment has taken effect. The letter and notice terminating employment, dated 3 July 2023, cannot be stayed, as doing so would amount to an order of reinstatement without affording the parties a hearing. The Petitioner has not set out any special circumstances that allow the grant of an order of reinstatement in the interim, as held in Nation Media Group & 2 others v John Harun Mwau [2014] KECA 308 (KLR). For an interlocutory mandatory injunction to issue, an applicant must demonstrate the existence of special circumstances. The respondents submitted that no prima facie case has been established as required in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). EAC arrested the Petitioner for using treated money received from a taxpayer, and his explanations were unsatisfactory. His conduct is not justified. Where the petition is heard on its merits, the 1st Respondent has a department with over 1300 positions ELRC NAIROBI RULING PETITION NO. E232 OF 2026 4

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to which the petitioner can be deployed. However, an order of restatement before hearing the parties is not feasible, and mutual trust has since been lost. The balance of convenience favours the 1 st Respondent, and the order sought should not be issued. Determination The petitioner is seeking an injunction suspending the implementation of the letter dated 3 July 2026, which terminated his employment. He further seeks to have the respondents restrained from suspending, varying or terminating his employment. The employment termination has taken effect. Such is communicated in a letter dated 3 July 2026. To stay, suspend or stop the implementation of the letter dated 3 July 2026 would effectively return the petitioner to the shop floor. Such is an order of reinstatement pending the hearing of the petition. Although the Petitioner has relied on various provisions of the Constitution, he refers to Section 12 of the Employment and Labour Relations Court Act. Indeed, Section 12(3)(vii) thereof governs orders of reinstatement. However, the parameters within which orders of reinstatement may be issued are set out in Section 49 of the Employment Act, which must be read together with the Employment and Labour Relations Court (Procedure) Rules (the Court Rules). Under Rule 53 of the Court Rules, an order of reinstatement should not issue in the interim: Notwithstanding anything contained in this Rule, the Court shall not grant an ex parte order that reinstates into employment an employee whose services have been terminated. ELRC NAIROBI RULING PETITION NO. E232 OF 2026 5

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The rationale is that an order of reinstatement should rarely be issued in the interim, as it requires specific performance, which ordinarily should be issued after a hearing on the merits of the dispute. In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR), the court held that one of the factors to be considered in determining the appropriate remedy for summary dismissal or unfair termination of employment is the common law principle that there should be no order for specific performance of a contract of services except in very exceptional circumstances. Thus, reinstatement is a remedy to be granted in exceptional circumstances, as it should not be automatic. In Kenya Power & Lighting Company Ltd v Wasike [2017] KECA 446 (KLR), the court observed that there should be no order for specific performance in a contract for services except in very exceptional circumstances. In Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR), the court held that before ordering reinstatement, the court ought to set out the factors that mark out a particular case as possessing exceptional circumstances before reinstatement can be ordered. In this case, the petitioner asserts that he has lost his salary and his livelihood upon the termination of his employment by the 1 st respondent. He will suffer loss and damage and go without medical cover. The parameters for the granting of an order of reinstatement as an interim measure are very strict. It should only be issued in rare cases. This does not stand out as one such case. The petition replicates the same orders sought in the interim. Therefore, by hearing the petition, the court will address the issues therein with finality. Accordingly, the application dated 21 July 2026 is without merit and is hereby dismissed. Costs shall abide by the outcome of the petition. Delivered in open court this 31st day of August 2026 ELRC NAIROBI RULING PETITION NO. E232 OF 2026 6

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M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and ………………………………….. ……… ELRC NAIROBI RULING PETITION NO. E232 OF 2026 7

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