Martin Luther Bwanga v Anti Counterfeit Authority

Act as the provisions allegedly breached or violated by the respondent. The Petitioner prays for: 1. A declaration that the Respondent’s Human Resource Policy and Procedures Manual, 2021 having not been approved by the Public Service Commission violates Articles 234 (2) (a), (f) and (g) of the Constitution and therefore inoperable, ineffectual null and void and cannot be implemented against or imposed on the petitioner. 2. A declaration that the Petitioner having not been consulted consented to in writing and his contract of service revised to incorporate the Respondents Human Resource Policy and Procedures Manual, 2021, violates Section 9(2) and 93) and 10(5) of the Employment Act is illegal and unenforceable and do not form part of the contract of service of the petitioner. 3. A declaration that the impugned disciplinary action to the extent that it seeks to impose disciplinary action against the petitioners for performing his normal assigned and routine functions is contrary to the provisions of Article 236 of the Constitution of Kenya and is therefore invalid. 4. A declaration that under Section 69 of the Public Service Commission Act every case of alleged misconduct must first be investigated, the affected officer given an opportunity to examine each and every and all persons giving adverse testimony or ELRC NAIROBI- PET E093 OF 2025 2

page 2 of 21

documents against him and a report complied before any action is taken. 5. General damages for constitutional violations. 6. Costs. Respondent’s case The Respondent avers that its Human Resource Policy and Procedures Manual 2021 were valid and enforceable against the Petitioner by dint of the Public Service Commission’s letter dated 6th March 2026 which allowed state corporations to continue using their instruments for six (6) months to have them approved by the Public Service Commission and the petitioner was indeed a beneficiary of the instruments including this designation as the principal Anti-counterfeit Inspector and Regional Head not identified in his letter of Appointment. That the instruments were developed in accord with state Corporations governance framework and approved by the state Corporations Advisory Committee (SCAC) in 2021 and employees were aware of their operationalization. That the membership of the Human Resource Management Advisory committee (HRMAC) is drawn from management as per the HR Manual and recusal of two (2) members would not affect quorum and the complainant was the Chief Executive Officer of ELRC NAIROBI- PET E093 OF 2025 3

page 3 of 21

the Respondent. According the Respondent fact finding was conducted by management. The facts of the case are that the 14 th August 2024, the Petitioner was invited for a meeting at the Makueni County Commissioner’s Office and attended and was again on 28 th August 2025 invited at the same venue and attended. He was yet again was for a regional meeting of Regional Commissioner Eastern Region in Embu on 28th January 2026, which he attended and informed the Accounting Officer through the supervisor but the Accounting Officer demanded a letter to the Executive Director and a notice to sow cause followed on 24th February 2026. The Respondent transferred the Petitioner on 22 nd December 2025 but he challenged it in court and the court issued an injunction on 9th January 2026 and order served on the Respondent. A decision was delivered on 8th May 2026. On 24th February 2026 the Petitioner was issued with a notice to show cause with three (3) charges namely insubordination, misuse of authority vehicle and resources and breach of communication protocol. The Petitioner responded on 5th March 2026 by way of internal memo protesting that he was attending a national government function which was part of his functions. Petitioner’s submissions The petitioners counsel addressed eleven (11) issues contending that the disciplinary process violated Article 234 (2) (4) and (g) of ELRC NAIROBI- PET E093 OF 2025 4

page 4 of 21

the Constitution and Section 56 of the Public Service Commission Act since the Respondents HR instruments were invalid and the respondent admitted that they were approved by the SCAC thus invalid. Reliance was placed on the decision in Consumer Federation of Kenya (COPEK) suing through its Official Stephen Mutoro Epharaim Kanake and Henry Ochieng v National Social Security Fund Board of Trustees & another (2022) KEELRC 243 (KLR) for the proposition that human resource instruments not approved by the Public Service Commission were null and void. On the PSC letter dated 6th March 2026, on the six (6) months extension, counsel submitted that the approval was inapplicable since the approval was prospective not retrospective. The PSC could not invalidate invalid instruments. Reliance was placed on the provisions of Section 13 of the Employment Act. That the PSC letter was inapplicable. As to whether the intended disciplinary proceedings violated Section 9(3) of the Employment Act on execution of a contract of service COUNSEL submitted that the HR instruments were not part of his contract of service citing Banking Insurance and Finance Union (Kenya) v Access Bank PLC (Kenya) Ltd (2024) KEELRC 2124 (KLR) to submit that he did not sign the HR instruments and urge the court to find that they did not apply to him. ELRC NAIROBI- PET E093 OF 2025 5

page 5 of 21

Reliance was placed on Kihara v Kenya Revenue Authority & 2 others (2022) KEELRC 12718 (KLR) on variation of the terms of a contract. Counsel submitted that the intended disciplinary action violated Article 236 of the Constitution because the Petitioner attended a mandatory national government function and it had not been objected to citing the decision in James Kariuki Wanyamba v Kagum Teachers College (2015) KEELRC 533 (KLR) to urge that he could not be constitutionally and legally disciplined for attending the function. It was submitted that the Respondent had violated Section 54 of the Public Service Commission Act as its HR instruments WERE yet to be approved by the PSC and as such could not be implemented against the Petitioner. That the Respondent did not conduct investigations prior to the disciplinary process and thus violated Section 69 of the Public Service Commission Act and violated his right to access justice right to fair administrative action and the right to equality and freedom from discrimination and there was no document by the name “service regulations.” That it was improper for the Chair of the Board of Directors to take sides in management processes since appeals from such decision lie in the Board citing the sentiments of the Court in Loporna v Kapenguria Water & Sewerage Services Ltd KEELRC 20280 ELRC NAIROBI- PET E093 OF 2025 6

page 6 of 21

(KLR) to urge that the pathway to an impartial process had been impaired. Counsel urged that the entire process violated the doctrine of delegatus non potest delagare since the Executive Director was a delegate he could not delegate to another officer as held in Republic v University of Nairobi Ex parte Maxwell Magawi Odhambo KHC 6926 (KLR) to urge that the Executive Management on the HRMAC were precluded from determining the Petitioners case. Respondent’s submissions Concerning the validity and applicability of the HR instruments, counsel submitted that the petitioner’s contract of service subjected him to the service regulations as amended from time to time the HR instruments were incorporated in his contract by reference and they were approved by SCAC in 2021 and the petitioner benefited from them. Moreover, the PSC gave the instruments six (6) months transition period and the petitioner was thus approbating and reprobating. Reliance was placed on Githongo & another v State Corporations Advisory Committee & others (2025) for the propostion that the PSC had the constitutional oversight over HR Instruments of state corporations and those approved by SCAC remained valid during the transition. ELRC NAIROBI- PET E093 OF 2025 7

page 7 of 21

On alleged violation of the constitution, counsel relied on the decision in Geofray Mworia v Water Resources Management Authority & 2 other (2015) eKLR and Mwamati v Tanathi Water Works Development Agency & another (2024) to urge that the Petitioner had failed to show how the disciplinary process violated his constitutional rights, which burden of proof he bore. Reliance was placed on Anarita Karimi Njeru v Republic (1989) KLR, and Mumo Metemu’s Case on the requisite threshold to urge that the instant case was an attempt to constitutionalize a disciplinary matter. On allegation of bias or breach of rules of natural justice, counsel submitted that no evidence of bias had been availed and conflicted persons could recuse themselves. Reliance was placed on Martha Wangari Karua & another v Independent Electoral Boundaries Commission & 3 others (2018) on the likelihood of bias Counsel submitted that rules of natural justice are assessed on the basis of the hearing conducted as opposed to speculative fears, and disciplinary control was vested on the employer and courts should not interfere prematurely. As to whether the provisions of Article 236 of the Constitution were violated, counsel submitted that the charges against the petitioner went beyond attending a function, they included failure to report, authorization requirements, protocols and accountability ELRC NAIROBI- PET E093 OF 2025 8

page 8 of 21

in public service, which did not infringe on the petitioner’s constitutional rights. Analyses and determination As adverted elsewhere in this judgment, the facts of the case are largely uncontested. The petitioner was employed by the respondent as its Chief Anti-Counterfeit Inspector Grade ACA 7 effective 21st September 2015 at gross salary of Kenya shillings 176,394. Paragraph 3 of the Letter of Appointment stated. “All other terms and conditions detailed on your offer of appointment letter remain unchanged” As adverted to elsewhere in this judgment the Petitioner is contesting the Respondent’s HR instruments and the disciplinary process namely; the charges, HRMAC, chair of Board’s involvement among others. The issues for determination are: (i) Whether the respondent’s HR instruments are valid and applicable to the petitioner. (ii) Whether the respondent violated the Petitioners’ Constitutional rights. (iii) Whether the disciplinary process was justified. (iv) Whether the petitioner is entitled to the reliefs sought. ELRC NAIROBI- PET E093 OF 2025 9

page 9 of 21

On the 1st issue, it is common ground that the Respondents Human Resource Policy and Procedures Manual and other instruments were approved by SCAC in 2021 and had been in operation since then. The petitioner availed a copy of the approved documents. In Christopher Onyango & 23 others v Heritage Insurance Co. Ltd ELRCC No. 781 of 2015 Mbaru J held as follows; “A Human Resource Policy or manual and in some cases a handbook that set out the rules of operation at the work place is not similar to an employment contract. The employment contact is the primary document that give employment the human resource policy gives rules and regulations at work that give guidance to employees on how to undertake their work in the midst of other employees so as to ensure harmony order, discipline and any regulation that an employer requires to be taken into account due to the nature of its business. Such a policy, can also incorporate the various benefits in employment and how they are administered. Such should contain a comprehensive schedule on how to address disciplinary matters, terminations and redundancy. In a best-case scenario, such a policy go together with the employment contract by being brought to the attention of the employee immediately upon employment…” It is important to underline the fact that an organization’s HR instruments are not restricted to the Human Resource Policy and Procedures Manual or rules or regulations or Handbook, they include the organizational structure, staff establishment and career progression guidelines among others and are approved as ELRC NAIROBI- PET E093 OF 2025 10

page 10 of 21

a package for implementation. No government institution operates without a basic framework which provides for the structure of the organization, positions, rules, salaries among other essential provisions including allowances among others. The Human Resource Instruments of the Respondent were approved by SCAC on 2nd June 2017 and were subsequently reviewed in 2021. These are facts within the petitioner’s knowledge as evidenced by the petitioner’s email to Lindsay Kipkemoi dated 24th December 2025, which he deemed binding on him and the respondent. The Petitioner’s contention that the documents approved by the SCAC were invalid or null and void is patently untenable. Granted that the Petitioner joined the organization in 2015, the petitioner is presumed to have been aware that the respondent had internal policies or guidelines and equally deemed to have been aware of the documents approved by SCAC and invoked them in the course of employment. As the Respondent’s Acting Chief Executive Officer deponed, that petitioner designation as Principal Anti-Counterfeit Inspector and Regional Head Eastern Region and attendant benefits were a consequence of the HR Instruments 2021, a deposition he did not rebut. In Otieno v National Cereals & Produce Board (2021) KECA 23 (KLR), the Court of Appeal held; ELRC NAIROBI- PET E093 OF 2025 11

page 11 of 21

“It is clear to us, however, that said manual was in existence for the time the appellant worked for the respondent. While appreciating that the employer had the statutory responsibility to avail the manual to the appellant, it was also prudent and in his interest for the appellant to inquire about and obtain the manual from the respondent. This was even more important during the disciplinary process and after receiving the letter of suspension…” In the instant case the petitioner is not contesting the existence or knowledge of instruments but the fact that he did not sign for it and that it was not approved by the PSC in accord with Article 234 (2) of the Constitution of Kenya. As regards the signature or consent the petitioner’s offer of appointment letter, which he accepted, and which detailed the terms and conditions of employment was explicit on the “service regulations inforce or as may be amended from time to time,” which incorporated all other regulations, policies, procedures or handbooks in situ or as amended from time to time. They all became part of the package and the Petitioner cannot be heard to say that he did not sign for the HR instruments. They became part of the contract of employment by reference. The phrase “service regulations” typically denotes internal rules, procedures or policies that govern the employment relationship. The foregoing is fortified by the holding of the Court of Appeal in Heritage Insurance Co. Ltd V Christopher Onyango (2017) KECA 27 (KLR), thus; ELRC NAIROBI- PET E093 OF 2025 12

page 12 of 21

“...Once one is brought on board as an employee whose contract has a general clause requiring obedience of employer’s lawful orders and decisions contained in or later issued in a Human Resource Manual the employee was bound by the order or direction. It is not necessary for an employee to sign or indicate acceptance every time a staff manual is issued. The responsibility of the employers is to bring it to the attention of he employee.” These sentiments apply on all fours to the circumstances of the instant case. The service regulations in force or as amended from time to time were part of the petitioner’s employment package. The court also notes that the Petitioner adduced no evidence to show that the respondents Human Resource Policy and Procedures Manual 2021 changed or modified the terms of his contract of employment to implicate the provisions of Section 10(1) (2) and (5) of the Employment Act. Significantly, although the Constitution of Kenya confer upon the PSC power to oversight Human Resource instruments of state corporations, in its endeavour to develop human resource in the public service and ensure efficient and effective public service as mandated by the Constitution and contrary to the Petitioner’s averment and submission by counsel that HR instruments approved by the State Corporations, Advisory Committee were invalid and void, they are not and are still applicable in the public service. This is why. The Public Service Commission delegated the power to oversight the development of HR instruments in the public service to the ELRC NAIROBI- PET E093 OF 2025 13

page 13 of 21

SCAC in writing and it is a matter of public notoriety that the senior staff of the SCAC facilitated the development of HR instruments across the public service and approved the instruments submitted to it by Boards of directors. By so doing the SCAC was exercising delagated authority conferred by an instrument executed by the delegator, the PSC. It is trite law that qui facit per alium facit perse. The HR instruments of the respondent assumed validity from the date they were approved by SCAC. Finally, on this issue, the letter by the Public Service Commission dated 6th March 2026, which the petitioner dismisses as in inconsequential was consequential and timely following the decision in Githongo & another v State Corporations Advisory Committee & another Public Service Commission & 2 others (Interested Parties) (2025) KEHC 18054 (KLR) (5th December 2025). The letter read in party; “Accordingly, all state corporations that are operating on human resource instruments that are not approved by the commission, are required to immediately review the same and submit to the commission for approval within six months from the date of this circular. In the interim period, the commission grants approval for the continued used of the existing human resource instruments for six months from the date of this circular. Upon expiry of the said six months period, all human resource instruments that have not been approved by the commission will automatically cease to apply in the management of human resource and any actions ELRC NAIROBI- PET E093 OF 2025 14

page 14 of 21

taken using the said human resource instruments thereafter will be automatically null and void.” The foregoing two paragraphs of the letter under reference Approval of Human Resource Instruments for state corporations and public universities’ is unambiguous as to the status of HR instruments approved by SCAC in exercise of its delegated authority. Flowing from the foregoing, the court finds that the Respondents HR instruments approved by SCAC on 14th April 2021 were not only valid and operational but were in a similar vein applicable to the Petitioner and indeed all other employees of the Respondent. The Respondent did not violate the provisions of Article 234 (2) (g) of the Constitution of Kenya or Section 54 of 56 of the Public Service Commission Act. Concerning Article 27 of the Constitution of Kenya and Section 5 of the Employment Act, the Petitioner alleged that he was discriminated on account of ethnicity and cited victimization witch-hunt and open bias. However, the Supporting Affidavit lacked details of the alleged witch-hunt victimization or the alleged bias. The provisions of Article 27 of the Constitution and Section 5(3) of the Employment Act prohibit direct and indirect discrimination of any person and in an employment relationship respectively. Blacks Law Dictionary 10th Edition, defines discrimination as: ELRC NAIROBI- PET E093 OF 2025 15

page 15 of 21

“The failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured” See also Peter K. Waweru v Republic (2006) EKLR, Nyarangi & 3 others v Attorney General (2008) EKLR and Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR) among others. In Nyachae v Kenya Orient Insurance Ltd (2023) KECA 136 (KLR) the Court of Appeal held: “As noted above section 5(7) of the Employment Act places the burden of disproving discrimination on the employer. The crux of that provision is that once an employee has made a prima facie case of discrimination, the burden then shifts to the employer to disprove the allegation. A prima facie case is one in which a court properly directing itself would conclude on the evidence presented that there exists a right which has been infringed. Only then can the burden shift to the respondent to disprove the allegation.” The Petitioner, in the instant case failed to place before the court sufficient material to enable it find that he had established a prima facie case of discrimination. Nothings turnson this issue. Similarly, the alleged violation of the right to access justice under Article 45 of the Constitution of Kenya and Article 47 the right to fair administrative action together with Section 46 (h) of the Employment Act were not supported by any verifiable evidence. ELRC NAIROBI- PET E093 OF 2025 16

page 16 of 21

Similarly, the right of access to justice under the Constitution is justice in a court of law or tribunal being the pinnacles of justice as by law established. The quorum of a committee or body cannot be challenged before the committee or body sits and an objection is raised nor could the fate of a conflicted member. These are practical challenges that the committee or body before which the challenge is raised must address and resolve to the satisfaction of the objector. Conflict of interest or bias necessitates recusal to ensure fairness. Under paragraph 2.15 of the Respondent’s Human Resource Policy and Procedures Manual 2021, the HRMAC is a Standing Committee constituted by the Executive Director to advice the Executive Director on all Human Resource Management issues as delegated by the Board with a Quorum of five (5) and not more than seven (7) members. Evidence on record reveals that the Respondent’s Executive Director had appointed seven (7) members and it follows that if two (2) members were conflicted, quorum would still be maintained. Nothing turns on this issue. Also whether the impugned disciplinary process was justified, the Petitioner averred that the Respondent’s Executive Director and his supervisor were acting irrationality and unreasonably as he merely attended a mandatory meeting convened by the Regional ELRC NAIROBI- PET E093 OF 2025 17

page 17 of 21

Commissioner in Embu and there was no objection and in any event it was his function to do so and the misconduct was not investigated as provided by Section 69 of the Public Service Commission Act. Black’s Law Dictionary 9th Edition defines investigation as: “To follow up step by step by patient inquiry or observation to trace or track; to search into; to examine and inquire into with care and accurancy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry” In simple parlance, investigation is a means of ascertaining the truth and in this case the facts were undisputed. The Petitioner had ignored the chain of command in communication, as he acknowledges via email to Lindsay and justified it using Articles 47 and 232 of the Constitution of Kenya among other laws. Second, the Petitioner admitted having attended a meeting in Embu without formal approval and facilitation, and finally, the petitioner copied internal official communication to strangers, all allegedly in violation of the respondent various clauses of the Respondent’s Human Resource Policy and Procedures Manual. Contrary to the petitioner’s averment that the respondent acted irrationally by requiring that the Regional Commissioner Eastern to redrafts the invitation letter dated 28 th January 2026, that is the way the letter ought to have been; namely addressed to the Executive Director of the Respondent as ordained by the Respondents manual whose Clause 16.2.10 provides; ELRC NAIROBI- PET E093 OF 2025 18

page 18 of 21

“All external communication to the Authority should be addressed to Executive Director Anti-Counterfeit Authority National Water Plaza Building P.O Box 4777-00100 Nairobi, Kenya, Email:inforce.aca.go.ke Website: www.aca.go.ke Concerning attending a meeting in Embu without approval, the Petitioner had no authority leave his station without approval of the Executive Director nor use the Respondent’s motor vehicle. If he did, he is liable surcharged for the fuel he spend. the justification is that the Respondent analogous to other state corporations has one Accounting Officer designated in writing by the Cabinet Secretary. This is the only person who authorizes expenditure by the corporation for all activities the corporation undertakes. The Respondent’s Accounting Officer is accountable to the National Assembly. Similarly, the copying of communication to strangers breached Clause 10.16.1 of the Human Resource Policy and Procedures Manual. Needless to belabour, the charges against the petitioner were breaches of the Respondent’s human resources manual 2021 and all were admitted directly or indirectly rendering any elaborate investigation unnecessary. ELRC NAIROBI- PET E093 OF 2025 19

page 19 of 21

For the foregoing reasons, it is the finding of the court that the intended disciplinary process against the petitioner was neither discriminatory targeted or victimization nor unconstitutional. The allegations were grounded on the operative Respondents Human Resource Policy and Procedures Manual, 2021. From the foregoing analysis, it is discernible that the petitioner’s case against the respondent is bereft of merit and it is accordingly dismissed. Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE 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 21st 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 ELRC NAIROBI- PET E093 OF 2025 20

page 20 of 21

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. DR. JACOB GAKERI JUDGE ELRC NAIROBI- PET E093 OF 2025 21

page 21 of 21