Jackson Kimani Waweru & 5 Others v Attorney General Kenya & 3 Others

1. The 3rd and 6th Claimants/Applicants filed a Notice of Motion dated 18th May 2026 under the Certificate of urgency seeking the following orders that: 1.Spent 2.The Honourable Court be pleased to grant leave to the firm of Murimi, Mbago & Muchela Advocates to come on record for the 3rd & 6th Claimants/Applicants. 3.Pending the hearing and determination of this Application inter partes, this Honourable Court be pleased to issue an order staying and/or restraining the release, withdrawal, refund or transfer of the balance of monies deposited in the court to the Respondents. 4.Pending the hearing and determination of this Application, the Honourable Court be pleased to issue an order to preserve and retain the monies deposited in court by the Respondents as security. 5.This Honourable Court be pleased to direct that the 3rd and 6th Claimants/Applicants be paid forthwith their accruing wages and/or salary arrears from the monies deposited in court in compliance with the court’s ruling dated 3rd October 2018. 6.This Honourable Court be pleased to order reconciliation and verification of the sums due and payable to each NKU ELRC CAUSE NO. 490 OF 2014 RULING 2 | PAGE

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Claimant/Applicant before any balance can be released to the Respondents. 7.Costs of this Application be provided for. 8.This Honourable Court be pleased to grant any other or further orders that it may deem fit, just and expedient in the circumstances. 2. The application is brought under Articles 41, 47 and 50 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, section 12 of the Employment and Labour Relations Court Act, Rule 17 of the Employment and Labour Relations Court (Procedure) Rules and all other enabling provisions of the law. 3rd and 6th Claimants/Applicants’ supporting affidavit 3. The application is supported by the affidavit sworn by Hassan Godana Bagaja, the 6th Claimant/Applicant, dated even date as the application. He depones both on his own behalf and with authority from the 3rd Claimant, Benjamin Cheterek Kimengich. 4. The 3rd and 6th Claimants/Applicants aver that they were employees of the defunct Municipal Council, later Nakuru County Government, and were unlawfully suspended on 19th January 2009, where NKU ELRC CAUSE NO. 490 OF 2014 RULING 3 | PAGE

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Justice Radido in the judgment dated 7th October 2016 found the suspensions unlawful and directed the 3rd and 4th Respondents to compute and pay wages accrued up to the dates of separation, 21st and 22nd December 2009 respectively. 5. The 3rd and 6th Claimants/Applicants further aver that the ruling of 3rd October 2018, which clarified that only wages up to separation were payable. 6. The 3rd and 6th Claimants/Applicants aver that although the 4th Respondent deposited Kshs.7,315,618.60/= in court as security, the Respondents have never served computations or effected payments to them, yet now allege that payments were made and seek release of the balance. 7. The 3rd and 6th Claimants/Applicants aver that no proof of payment has been furnished, and unless the funds are preserved, grave injustice will result. 8. The 3rd and 6th Claimants/Applicants emphasize that they are entitled to the fruits of the judgment, that verification and reconciliation of payments must be undertaken before any release of funds, and that NKU ELRC CAUSE NO. 490 OF 2014 RULING 4 | PAGE

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granting the orders sought will not prejudice the Respondents but will safeguard justice. 3rdand 4th Respondents’ replying affidavit and supplementary affidavit 9. The 3rd and 4th Respondents filed a replying affidavit and supplementary affidavit sworn by Maureen Litunda, 4th Respondent’s advocate, both dated 2nd June 2026 and 13th July 2026, strongly opposing the 3rd and 6th Claimants/Applicants’ application, terming it baseless and procedurally defective. 10. The 3rd and 4th Respondents emphasized that the court’s final order of 3rd October 2018 was never challenged, and the deceased 3rd Claimant could not have authorized the 6th Claimant to act on his behalf. 11. The 3rd and 4th Respondents confirmed that Kshs.7,315,618.60/= was deposited in court on 27th June 2018, with computations showing Kshs.318,496.20/= payable to each of the 3rd and 6th Claimants, leaving a balance of Kshs.6,678,626.20/=. 12. The Respondents argued that the computation was properly done, the Claimants were competently NKU ELRC CAUSE NO. 490 OF 2014 RULING 5 | PAGE

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represented, and no dispute exists regarding the sums due. 13. In their supplementary affidavit, the 3rd and 4th Respondents reiterated that the Claimants’ advocates had consented to the agreed figures, evidenced by correspondence and consents dated 19th March 2021 and 28th September 2023. 14. The 3rd and 4th Respondents asserted that the 6th Claimant was fully aware of the payments, making the application an afterthought, and stressed that the Respondents discharged their obligations upon depositing the funds in 2018. 15. The 3rd and 4th Respondents concluded by urging the Court to dismiss the application as baseless and to release the balance of Kshs.6,678,626.20/= to the 4th Respondent, noting that this would be fair and cause no prejudice to the Claimants. 3rd and 6th Claimants/Applicants’ further affidavit 16. The 3rd and 6th Claimants/Applicants filed a further affidavit dated 12th June 2026. 17. The 3rd and 6th Claimants/Applicants aver that Mary Wairimu Mwaniki, widow of the deceased 3rd Claimant, is legally empowered to act on behalf of NKU ELRC CAUSE NO. 490 OF 2014 RULING 6 | PAGE

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his estate, supported by annexed copies of the marriage, death, and grant ad litem certificates. 18. The 3rd and 6th Claimants/Applicant dispute the Respondents’ understated computation of dues, asserting that their rightful entitlements calculated under CBA guidelines stand at Kshs1,363,680.50/= and Kshs.1,770,553.00/= respectively. 19. The 3rd and 6th Claimants/Applicants recount multiple letters sent through their union between 2022 and 2025 seeking payment, all ignored by the Respondents. They decry the Respondents’ failure to communicate or honour promises, describing their conduct as unjust and oppressive. 20. The 3rd and 6th Claimants/Applicants urge the court to intervene, enforce its earlier ruling, and ensure disbursement of the computed sums from the money deposited in court, emphasizing that justice demands fair compensation and protection of their rights. 21. Parties canvassed the application by way of written submissions. 3rd and 4th Respondents submissions NKU ELRC CAUSE NO. 490 OF 2014 RULING 7 | PAGE

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22. The 3rd and 4th Respondents submitted that the application is incompetent since the 3rd Claimant died on 5th September 2013, and the 6th Claimant lacked lawful authority to act on his behalf, citing Rule 23(2) of the Employment and Labour Relations Court (Procedure) Rules 2024. The 3rd and 4th Respondents emphasize that the computation of dues Kshs.318,496.20/= for each Claimant was properly prepared by the 4th Respondent’s accountant, agreed upon by the parties, adopted by the Court in its ruling of 3rd October 2018, and reinforced by a consent dated 19th March 2021 and filed on 28th September 2023. 23. The 3rd and 4th Respondents submitted that the Claimants have never challenged the judgment of 7th October 2016, the ruling of 3rd October 2018, the computation, or the consent through appeal or review, and any attempt to reopen the matter would improperly invite the Court to sit on appeal against its own decision. The Respondents underline that they discharged their obligations by depositing Kshs.7,315,618.60/= in court on 27th June 2018, and that the application is merely a delaying tactic aimed at obstructing release of the balance Kshs.6,678,626.20/= to the 4th Respondent. NKU ELRC CAUSE NO. 490 OF 2014 RULING 8 | PAGE

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24. The 3rd and 4th Respondents therefore urge the court to dismiss the application as wholly unmeritorious, procedurally incompetent, and oppressive, and to order immediate release of the funds to the 4th Respondent. 25. At the time of the writing of this ruling, the 3rd and 6th Claimants/Applicants did not file their respective written submissions. Analysis and determination 26. The court has thoroughly considered the application filed, supporting affidavit, further affidavit, supplementary affidavit and annexures, as well as submissions. The court finds the two issues for determination are as follows: i. Whether the firm of Murimi, Mbago & Muchela Advocates are properly on record for the 3rd & 6th Claimants/Applicants; and ii. Whether the application dated 18th May 2026 is competent and merited. 27. Order 9 Rule 9 of the Civil Procedure Rules provides as follows: “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such NKU ELRC CAUSE NO. 490 OF 2014 RULING 9 | PAGE

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change or intention to act in person shall not be effected without an order of the court— (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 28. In Kochieng v County Assembly Service Board & another [2023] KEHC 1681 (KLR) the court observed that Order 9 Rule 9 of the Civil Procedure Rules was intended to safeguard the interests of an advocate who has handled a matter to its conclusion. It noted that if it were to find that the firm of M/s Onsongo & Co. Advocates had been served, such a finding would defeat the purpose of the rule. The court therefore held that a change of advocates could only be permitted if it was fully satisfied that proper notice had been issued or a consent, as envisaged under Order 9, had been filed. In the absence of such compliance, the court stated that M/s C. Obiero & Associates had no capacity to represent the defendants, and consequently, the other prayers sought could not be addressed. NKU ELRC CAUSE NO. 490 OF 2014 RULING 10 | P A G E

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29. In Ewins v Abdalla [2022] KEELC 14693 (KLR), the court cited the case of Ahamed Mohamud Adam vs. Jimmy Tomino & 2 Others Nakuru HCCC No. 244 of 1998 where the learned judge held that: “The mischief that was intended to be cured by the provisions of Order 3 rule 9A was to ensure that after judgement, a change of advocates was not effected without notifying the advocate who was on record. In other words, it was meant to secure the interest of the advocate who acted for the party up to the judgement.” 30. In Small Wonder Limited v General & Another [2025] KEELC 7730 (KLR), the court cited the case of Daktari v Hussein [2024] eKLR, where the court commented on Order 9 Rule 9 of the Civil Procedure Rules as hereunder: “I find that Order 9 Rule 9 of the Civil Procedure Rules (2010) is couched in mandatory terms as it employs the word “SHALL.” I opine that a court of law has no business to amend the express and mandatory intention of the Legislature.” NKU ELRC CAUSE NO. 490 OF 2014 RULING 11 | P A G E

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31. Still in Small Wonder Limited v General & Another (Supra), the court also cited the case of Ndetu v Silver Hawk International Limited [2024] KEELRC 366 (KLR) where the court stated as follows: “In Jackline Wakesho v Aroma Café [2014] eKLR it was held that failure to observe the requirements of Order 9 Rule 9 of the Civil Procedure Rules is a matter of jurisdiction and not one of procedural technicality. The Court in Jacline Wakesho (Supra) stated as follows: “Although the…objection appears like a technical procedural issue, this court finds that the default by the applicant goes to the jurisdiction of the court to entertain the motion. The reason for the foregoing reasoning is that the court has no jurisdiction to preside over incompetent proceedings filed by counsel who lacks locus standi. The court has been asked to invoke the oxygen principle under Section 1A and 1B of the Civil Procedure Act and entertain the motion. The court will not however do that. The reason for the foregoing is twofold. Firstly, there are several judicial pronouncements cited by the NKU ELRC CAUSE NO. 490 OF 2014 RULING 12 | P A G E

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claimant which show that courts have over time declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9…” 32. In this instant case, judgment was delivered by Radido J(as he was then) on 7th October 2016 with the Claimants represented by the firm of Brian Otieno & Co. Advocates. Following the judgment, the firm of Gordon Ogola Kipkoech & Co. Advocates entered into a consent with Brian Otieno & Co. Advocates to take over representation of the Claimants. Subsequently, the firm of Murimi, Mbago & Muchela Advocates filed the present application seeking to come on record for the 3rd and 6th Claimants/Applicants. 33. The court, however, observed that Murimi, Mbago & Muchela Advocates had not provided evidence to the court of a consent with the former Counsels of the Claimant. Equally, they did not provide evidence of service to the said Counsels of their intention to take over the suit. In the circumstances, the court finds that Murimi, Mbago & Muchela Advocates were not properly on record and therefore lacked locus standi to file or prosecute the application dated 18th May 2026. NKU ELRC CAUSE NO. 490 OF 2014 RULING 13 | P A G E

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34. Equally, there is still a valid court order dated 17th October 2023 which states as follows: “THAT out of the sum of Kshs.7,315,618.60/= deposited in Court by the 4th Respondent on 27th June, 2018, a sum of Kshs.636,992.40/= be released to the 3rd and 6th Claimants” Advocates and the balance in the sum of Kshs.6,678,626.20 be released to the 4thRespondent’s Account Number 100171607 with Central Bank of Kenya, Nairobi Branch bearing the name Nakuru County Revenue Fund. THAT upon the successful release of the money as hereinabove stated, the matter be marked as settled.” There being no appeal or review of the said order, the court finds this application is not merited and is dismissed. 35. The court orders each party to meet their respective costs of this application. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 25th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE NKU ELRC CAUSE NO. 490 OF 2014 RULING 14 | P A G E

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ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2) (d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. NKU ELRC CAUSE NO. 490 OF 2014 RULING 15 | P A G E

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ANNA NGIBUINI MWAURE JUDGE NKU ELRC CAUSE NO. 490 OF 2014 RULING 16 | P A G E

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