Evans Ogutu Ouma v Migori County Assembly Service Board & another

Principal Finance Officer on 25th July 2018, and substantively to Principal Finance Officer/Principal Accountant on 8th June 2020, with effect from 1st July 2020. He avers that in his final designation he was employed on permanent and pensionable terms at a monthly salary of Kshs. 194,270/-. 2. The Claimant’s case is that on 1st February 2022, while he was away on official duty in Nairobi, the then Speaker of the 2nd Respondent and Chairperson of the 1st Respondent, Hon. Boaz Okoth Owiti, accompanied by a group of youth, unlawfully broke into his office and removed documents and computers, for which they were arrested and subsequently charged in Migori Criminal Case No. E342 of 2022. Following the incident, the Claimant avers that when he reported to work on 3rd February 2022, he was denied access to the Respondents’ premises and was served with a letter, backdated to 25th January 2022, withdrawing his mandates at the Central Bank of Kenya. 3. Shortly thereafter, on 6th February 2022, the Claimant states that the 1st Respondent resolved to place him on 60 days’ administrative leave, ostensibly Page 2 of 21 to investigate alleged

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professional misconduct and non-adherence to its resolutions and policies. The Claimant contends that this was done without any disciplinary process or hearing. Events within the Respondents’ governance structure then intervened: the then Speaker was impeached on 8th February 2022, and on 10th February 2022 the County Assembly dissolved the Service Board administrative that leave. had A placed new Board the Claimant on was subsequently constituted and gazetted. 4. Upon expiry of the 60-day administrative leave on 2nd April 2022, the Claimant avers that he attempted to resume duty but was denied access to the workplace and directed to await further communication. Thereafter, on 21st April 2022, he was served with a show-cause letter, to which he responded on 25th April 2022. The Claimant states that he was nevertheless never invited to a disciplinary hearing. In an effort to resolve the matter, he wrote to the acting Clerk on 9th June 2022 seeking transfer to the Migori County Public Service Board, but received no response. Page 3 of 21

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5. Subsequently, on 17th June 2022, he states that the Respondents directed him to resume duty on 20th June 2022. However, when he reported as instructed, he found the County Assembly Service Board embroiled in a dispute between two competing factions, each claiming legitimacy and having its own acting Clerk. The Claimant states that, in the ensuing confusion, he was denied access to his office and three days later, on 30th June 2022, one of the factions accused him of insubordination and gross misconduct. 6. Against that background, the Claimant avers that on 4th July 2022, he instituted Kisumu ELRC Petition No. E032 of 2022, Evans Ogutu Ouma & another v Migori County Assembly Service Board & others, seeking protection of his constitutional and labour rights. The following day, the Court issued orders maintaining the status quo, which were not heeded but instead, on the same day, he was served with a summary dismissal letter dated 4th July 2022. He contends that the dismissal was effected without a hearing, was based on false allegations and was internally contradictory, since it stated that he had been dismissed on Page 4 of 21

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4th June 2022 despite his having been invited to a disciplinary hearing on 30th June 2022. 7. According to the Claimant, the events did not end there. On 6th July 2022, the Respondents caused his photograph to be published in the Standard newspaper, accompanied by a warning that he was no longer their employee and should not transact business on their behalf. The Claimant contends that the publication was made without due process, violated the Court’s status quo orders and subjected him to public ridicule, shame and mental anguish. He states that sometime later on 6th October 2022 the court suspended the operation of the dismissal letter pending determination of the Petition, citing the Respondents’ violation of its orders. 8. Following the 2022 general election and the constitution of a new County Assembly Service Board and the resolving of the dispute between the competing factions, the Claimant avers that he was still locked out of the workplace. Nearly a year later, on 6th October 2023, he avers that he was served with a fresh show-cause notice containing allegations different from those that had initially resulted in his administrative Page 5 of 21

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leave and the first purported dismissal. He responded on 23rd October 2023, and attended the disciplinary hearing on 20 th November 2023, during which at the direction of the 1st Respondent’s chairperson he provided a detailed written account of the employment dispute via the letter dated 21st November 2023. 9. Notwithstanding the foregoing, the Claimant avers that on 1st December 2023, the Respondents summarily terminated his employment. He contends that the reasons given for the dismissal were not contained in the notice to show cause and that he was consequently found culpable of allegations against which he had not been afforded an opportunity to defend himself. He maintains that the disciplinary process was therefore predetermined, unlawful and procedurally unfair. 10. On the basis of the foregoing, the Claimant contends that the Respondents violated Articles 10, 19, 20, 21, 27, 41, 47 and 50 of the Constitution, section 4 of the Fair Administrative Action Act and the Employment Act. In particular, he alleges denial of substantive and procedural Page 6 of 21

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fairness, arbitrary administrative leave, prolonged disciplinary proceedings, denial of access to his workplace, inadequate notice of the allegations, denial of the right to representation, dismissal on allegations outside the notice to show-cause, breach of the Court’s status quo orders, and failure to issue him with a Certificate of Service. He further alleges that the Respondents’ conduct was malicious, actuated by bad faith and amounted to unfair labour practices. Consequently, he seeks the following reliefs: (a) A declaration that the summary dismissal was unconstitutional, unlawful, unfair and in violation of the Employment Act. (b) A declaration that his right to fair labour practices and due process were violated. (c) An order quashing the Respondents’ two (2) summary dismissal letters dated 4th July 2022 and 1st December 2023. (d) Reinstatement without loss of salary and and unfair benefits. (e) General damages for dismissal. Page 7 of 21 wrongful

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(f) Salary arrears from 1st December 2023 to-date (February 2026) being Kshs. 194,270 x 26 months = Kshs. 5,051,020/-). (g) (c) Compensation in accordance with section 49(1) of the Employment Act, 2007 for loss of employment and future earnings being Kshs. 194,270 x 12 months = Kshs.2,331,240/-. (h) Payment in lieu of notice pursuant to Section 35 of the Employment Act, 2007 being Kshs. 194,270/-. (i) Terminal benefits and dues comprising; untaken accrued leave days and gratuity/service pay. (j) An order directing the issuance of a Certificate of Service, (k) Costs of the suit. (l) Interest on all the monetary awards from the date of filing suit until payment in full. (m) Any other order the court may deem appropriate. 11. Despite entering appearance, the Respondents did not file a Response to the Memorandum of Claim. The matter subsequently proceeded to hearing on 29th June 2026, when Page 8 of 21

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the Claimant testified. The Court has duly considered his testimony. Thereafter, the Claimant’s case was closed, and the Respondents’ case was similarly closed and written submissions were filed. Claimant’s Submissions 12. In support of the suit the Claimant identifies the following issues for determination, namely: (1) Whether the suit is competent and properly before the Court; (2) Whether the Claimant's summary dismissal(s) were unlawful, unfair, and unconstitutional; (3) Whether the Claimant is entitled to the reliefs sought; and (4) 13. Who bears the costs of the suit. On the competence of the suit before court, the Claimant submits that the issue of res judicata was raised and determined in the Respondents’ Preliminary Objection dated 22nd October 2025. He submits that, in its Ruling delivered on 28th April 2026, the Court found that the earlier matters Page 9 of 21

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relied upon by the Respondents had been struck out on preliminary and jurisdictional grounds and had not been determined on their merits. The Court also found that the Claimant had exhausted the available alternative remedy before the Public Service Commission, which declined to admit his appeal. The Claimant therefore submits that the Ruling remains valid and has neither been reviewed, varied nor set aside, and consequently the suit is properly before the Court and is not res judicata. 14. On whether the summary dismissals were unlawful, the Claimant submits that they failed both the procedural and substantive fairness test. Moreover, he asserts that the Respondents failed to discharge their burden under section 43 and 47 (5) of the Employment Act since they neither filed a Response nor adduced any evidence. 15. As regards the first dismissal, the Claimant submits that he was placed on administrative leave, denied access to his workplace, issued with a show cause letter, and thereafter dismissed without being afforded a disciplinary hearing as Page 10 of 21

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required by law. He further submits that the dismissal letter was backdated to 4th June 2022 but served on 5th July 2022, the same day on which the Respondents were served with interim orders in Kisumu ELRC E032 of 2022 preserving his employment status. He contends that the dismissal was therefore effected in breach of the subsisting Court orders and without due process. 16. With respect to the second dismissal dated 1st December 2023, the Claimant submits that the disciplinary process was a predetermined attempt to retrospectively justify his earlier removal. He contends that the allegations in the show-cause letter, the matters considered at the disciplinary hearing and the reasons ultimately relied upon in the dismissal letter were materially different. He therefore submits that he was denied a proper opportunity to know and answer the case against him, contrary to section 41 of the Employment Act and the principles of audi alteram partem. He further invokes Articles 41, 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act. He submits that both dismissals consequently failed the substantive and procedural tests envisaged in Walter Ogal Anuro v Page 11 of 21

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Teachers Service Commission [2013] eKLR and were unlawful, unfair and unconstitutional. 17. On whether he is entitled to the reliefs sought, the Claimant submits that he is entitled to reinstatement under section 49(3)(a) of the Employment Act, having expressly sought to return to his former position without loss of seniority, salary or benefits. He submits that the factors under section 49(4), including his wishes, the circumstances of termination, his alleged lack of contribution to the termination and the practicability of reinstatement, favour the remedy. He relies on Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR and Paul Ngotwa v Telkom Kenya Limited [2013] eKLR. He further submits that the institutional conflict which previously existed within the 1st Respondent has since been resolved and that the Respondents’ failure to issue him with a Certificate of Service has impeded his efforts to secure alternative employment. 18. The Claimant further submits that he is entitled to twelve months’ compensation under section Page 12 of 21 49(1)(c) of the

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Employment Act, amounting to Kshs. 2,331,240/-, having regard to the circumstances of his dismissal and the Respondents’ conduct. He relies on Kenfreight (E.A.) Limited v Benson K. Nguti [2019] eKLR in support of the claim for maximum compensation. 19. On salary arrears, the Claimant submits that, consequential upon reinstatement, he is entitled to salary arrears from 1st December 2023 until judgment or reinstatement, which he calculates at Kshs. 5,051,020/- as at February 2026, subject to updating the amount to the date of judgment. He also claims Kshs. 194,270/- in lieu of notice under section 35 of the Employment Act. 20. On accrued leave, the Claimant submits that he was not granted annual leave during the period from 8th June 2020 to 1st December 2023 and that the Respondents failed to produce employment records to rebut his evidence. Relying on sections 28 and 74 of the Employment Act and Mukade v Aliwalis [2023] KEELRC 839 (KLR), he claims Kshs. 384,850.15 for 73 accrued leave days. Page 13 of 21

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21. In respect of pension and NSSF, the Claimant submits that the Respondents ought to account for and remit all employee and employer pension contributions due to LAPFUND during his employment. confirmation of He similarly his NSSF seeks an contributions account and and the for Respondent to make all the necessary steps to enable him access his benefits. 22. The Claimant further submits that he is entitled to a Certificate of Service under section 51 of the Employment Act, which the Respondents have allegedly failed to issue. Finally, the Claimant submits that he is entitled to general damages for alleged violations of his constitutional rights, professional stigmatization and distress arising from the manner in which he was treated, including the alleged publication of his personal details in the media. He also seeks costs of the suit on an indemnity basis and interest on the monetary awards at court rates from the date of filing until payment in full. On costs the Claimant submits that having been compelled to file suit due to the Respondents’ unlawful conduct, he is entitled to costs for the suit. Page 14 of 21

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Respondents’ Submissions 23. On their part the Respondents submit that this suit is res judicata. They point out that the Claimant previously instituted Evans Ogutu Ouma v County Assembly of Migori & Migori County Assembly Public Service Board, Kisumu ELRCC E072 of 2023, and Republic v Migori County Assembly Service Board, Ex parte Evans Ogutu Ouma, Kisumu ELRC – JR E046 of 2023, concerning facts and issues similar to those raised in this suit. The Respondents assert that in both suits the Court underscored that persons serving under the County Assembly Service fall under the County Public Service Board and are therefore subject to sections 86 and 87 of the Public Service Commission Act, hence the Claimant ought to have lodged an appeal before the Public Service Commission. 24. The Respondents further submit that the Claimant admitted that his application before the Public Service Commission for leave to lodge an appeal out of time was heard and dismissed on its merits, and that he has neither challenged nor appealed that decision. They therefore Page 15 of 21

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contend that the issue of jurisdiction has already been determined in the previous proceedings and that the Claimant cannot circumvent that determination by recasting his claim. In support of this contention, the Respondents rely on ET v Attorney-General & another [2012] eKLR, where the Court cautioned against litigants evading the doctrine of res judicata by introducing new causes of action to seek remedies previously determined. They also reference Njangu v Wambugu & another, Nairobi HCCC No. 2340 of 1991 (unreported), cited therein, on the impropriety of giving a previously determined case a “cosmetic face-lift” to relitigate the same issue. 25. The Respondents therefore urge the Court to uphold the previous decisions and find that the Claimant ought to have pursued the statutory appellate process before approaching the Court. They consequently urge the Court to dismiss the claim with costs. Disposition 26. There is an assertion the suit herein is res judicata, which goes to the jurisdiction of the Court. If the matter is determined to be res judicata it means there will be no need Page 16 of 21

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to determine any of the other issues raised in the claim before me. In the Court ruling delivered on 28 th April 2026, the Court held the suit herein was not res judicata. It would seem the issue is the cross the Respondents have decided to be hang on. Having determined the issue, it was not for determination in this suit, again. 27. The Claimant was dismissed for the second time vide a dismissal letter dated 1st December 2023. This was pursuant to a disciplinary process that was predetermined to retrospectively justify the Claimant’s earlier removal. The allegations in the show-cause letter, the matters considered at the disciplinary hearing and the reasons ultimately relied upon in the dismissal letter were materially different from each other. The Claimant was denied a proper opportunity to know and answer the case against him, contrary to section 41 of the Employment Act and the principles of audi alteram partem. The termination was contrary to Articles 41, 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act. Both dismissals meted out fail the substantive and procedural tests envisaged in Walter Ogal Page 17 of 21

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Anuro v Teachers Service Commission [2013] eKLR and I hold and find that the dismissals were unlawful, unfair and unconstitutional. The Court therefore will assess whether the Claimant is entitled to relief. 28. The Claimant in his submissions asserts that he is entitled to reinstatement under section 49(3)(a) of the Employment Act, having expressly sought to return to his former position without loss of seniority, salary or benefits. He submits that the factors under section 49(4), including his wishes, the circumstances of termination, his alleged lack of contribution to the termination and the practicability of reinstatement, favour the remedy. He relies on Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR and Paul Ngotwa v Telkom Kenya Limited [2013] eKLR. He further submits that the institutional conflict which previously existed within the 1st Respondent has since been resolved and that the Respondents’ failure to issue him with a Certificate of Service has impeded his efforts to secure alternative employment. Page 18 of 21

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29. Reinstatement is a remedy available to a party in certain cases where the position exists and where the return would otherwise not be prejudicial to the parties. In this case, a lot of bad blood has flowed between the parties and given that the political atmosphere prevailing at the material time greatly contributed to the woes of the Claimant, a reinstatement may not be the appropriate remedy. Instead, compensation would be the way to go. In that regard, the Court would compensation award in the terms of Claimant twelve months’ section 49(1)(c) of the Employment Act, amounting to Kshs. 2,331,240/- bearing in mind the circumstances of his termination including the infamous advert in the Standard newspaper through which the entire world was notified of his dismissal. If there was latitude to award 24 months the Court would have immediately awarded the sum. However, the law caps the compensation to the sum awarded which is the maximum sum permitted for the unfair and unlawful manner of termination. Precedent such as the case of Kenfreight (E.A.) Limited v Benson K. Nguti (supra) supports the award of maximum compensation. Page 19 of 21

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30. The Claimant is entitled to one month’s salary to serve as notice which is in the sum of Kshs. 194,270/- in lieu of notice under section 35 of the Employment Act. The Claimant is not entitled to salary arrears and the claim for Kshs. 5,051,020/is disallowed. The Claimant is entitled to pay for 73 accrued leave days amounting to Kshs. 384,850.15. The Claimant ought to pursue the issue of his pension with the relevant authorities granted the Retirement Benefits Act operates and has a sufficiently established Tribunal to deal with similar claims. The Claimant shall also have the certificate of service in terms of section 51. He will also have costs of the suit together with interest at court rates from the date of judgment till payment in full. 31. In the final analysis I enter judgment for the Claimant against the Respondents jointly and severally for: a. A declaration that the termination meted out was unfair and unlawful. b. 12 month’s compensation in terms of section 49(1)(c) of the Employment Act, 2,331,240/-. Page 20 of 21 amounting to Kshs.

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c. One month’s salary as notice - Kshs. 194,270/- in lieu of notice under section 35 of the Employment Act. d. 73 accrued leave days amounting to Kshs. 384,850.15. e. A certificate of service in terms of section 51. f. Costs of the suit. g. Interest on the items in (b), (c) and (d) above at court rates from the date of judgment till payment in full. It is so ordered. Dated and delivered at Kisii this 28th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 21 of 21

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