Vicky Maosi Ogega v David Mwangi Maina & 4 others

IN THE MATTER OF DENIAL OF SECTION 5 OF THE ACCESS TO INFORMATION ACT AND IN THE MATTER OF DISCRIMINATION, UNFAIR LABOUR PRACTICE AND UNFAIR ADMINISTRATIVE ACTION IN THE APPOINTMENT OF KISII NATIONAL POLYTECHNIC GOVERNING COUNCIL AND IN THE MATTER OF A DETERMINATION OF THE VALIDITY OF THE TERMINATION BY THE KISII NATIONAL POLYTECHNIC GOVERNING COUNCIL AND AS TO WHETHER PARAGRAPH 5(1) (2) OF THE KISII NATIONAL POLYTECHNIC LEGAL ORDER IS INCONSISTENT WITH SECTION 36(1) AND 37 OF THE PUBLIC SERVICE ACT AND ARTICLE 232(1)(G) OF THE CONSTITUTION ON MERIT AND COMPETITIVE SELECTION AS A BASIS FOR ALL APPOINTMENTS BETWEEN VICKY MAOSI OGEGA…….....................................................PETITIONER DAVID MWANGI RESPONDENT VERSUS MAINA.............................................1ST PROF. KISILU RESPONDENT KITAINGE...............................................2ND DR. SIMON RESPONDENT NYAKWARA..............................................3RD THE KISII RESPONDENT NATIONAL POLYTECHNIC......................4TH JUDGMENT Page 2 of 19

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1. The Petitioner instituted this suit via a Petition dated 19th August 2025 seeking the following reliefs: (1) A declaration that the Petitioner’s termination was obtained by fraud hence null and void ab initio. (2) A declaration that the Petitioner is a permanent and pensionable employee of Kisii National Polytechnic. (3) A declaration that the Petitioner herein is entitled to his salary and all other benefits both as the Deputy Procurement Officer and 15% of the basic salary of a procurement officer. (4) A declaration that the Petitioner herein after serving in acting capacity for more than six months is a Procurement Officer after and entitled to all benefits in the said capacity. (5) An Order directing the 4th Respondent to pay the Petitioner all his unpaid salary arrears from April 2021 to the date of judgement at court interest rates. (6) A declaration that the appointment of the 1st, 2nd and 3rd Respondents as members of the Kisii National Polytechnic governing council is fraudulent, illegal null and void ab initio. Page 3 of 19

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(7) A declaration that the appointment of the 1st, 2nd and 3rd Respondents as members of the Kisii National Polytechnic (KNP) governing council violates the claimant’s fundamental rights to Article 27, 41 and 47 of the Constitution. (8) A declaration that Kisii National Polytechnic Governing council lacked quorum to terminate the Petitioner’s employment. (9) An order directing the 1st , 2nd and 3rd Respondents to refund all the monies received as remuneration, allowances and benefits for the entire duration they served as members of the Kisii National Polytechnic (KNP) Governing council and the 5th Respondent to file a report of compliance within 90 days. (10) In default of prayer (i) above, the 1st, 2nd and 3rd Respondents shall not hold office in any capacity as public officers or in any public office. (11) A declaration that the 1st, 2nd and 3rd Respondents’ fraudulent appointments contravene Kisii National Polytechnic Legal Order, the Leadership and Integrity Page 4 of 19

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Act, TVET Act and the constitution of Kenya and stands unfit to hold public office. (12) A penalty of Ksh. 5 million against the 1st, 2nd and 3rd Respondents for gross abuse of office, gross misconduct and gross violation of the Leadership and Integrity Act as provided under section 47 of the Leadership and Integrity Act read together with section 55 and 56 of the TVET Act. (13) A declaration that paragraph 5(1) (2) of the Kisii National Polytechnic Legal Order is inconsistent with section 36 and 37 Public Service Commission Act, 2017 read together article 232(1) (g) of the Constitution. (14) An award of exemplary damages to deter recurrence. (15) An award of aggravated damages. (16) Costs of the suit. 2. The Petitioner’s case is that he was employed by the 4th Respondent, as a Deputy Procurement Officer and subsequently served as Acting Procurement Officer. He contends that despite serving in the acting capacity for more than six months and attaining a satisfactory performance Page 5 of 19

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score of 93%, he was not confirmed. Instead, the 1st Respondent purported to terminate his employment by a letter dated 30th March 2021, allegedly on the ground that his probation had lapsed and that he had underperformed. The Petitioner avers that this was false, contending that his appointment letter did not stipulate the alleged expiry of probation and that no proper performance appraisal had preceded the termination. He further avers that, unlike the 27 other employees appointed alongside him, he was not confirmed, which action constituted discrimination contrary to Article 27(5) of the Constitution. 3. The Petitioner further maintains that the termination letter was fraudulent and contained material misrepresentations. In particular, he contends that it falsely represented that his termination had been sanctioned by the Governing Council on 23rd March 2021, yet he was summoned to a meeting of the Council’s Human Resource Committee on 24 th March 2021, it misrepresented that his probation would lapse on 31st March 2021 despite his appointment letter not stipulating such a period; concealed his service as Acting Page 6 of 19

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Procurement Officer for more than six months and his satisfactory 93% performance rating; and was contradicted by a subsequent memorandum dated 14th April 2021 in which the 1st Respondent called for a proper performance appraisal. He further highlights inconsistencies regarding the dates on which the Governing Council purportedly considered his termination. 4. It is the Petitioner’s further case that the termination concealed the fact that he had been appointed Deputy Procurement Officer on 13th March 2020 under a contract which remained subsisting. He contends that the 1st Respondent, who was a stranger to that employment contract, had no authority to terminate it or withhold his salary. He also contends that his appointment had become confirmed by operation of law and that his salary was unlawfully withheld despite the subsisting contract. According to the Petitioner, his removal was additionally motivated by his refusal to sign a fraudulent tender evaluation minute. Page 7 of 19

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5. As for the Governing Council, the Petitioner contends that it was illegal because the 1st Respondent had not been duly appointed principal, that position having not been declared vacant and no recruitment process having being carried out. Moreover, he avers that the Council lacked quorum and was improperly constituted when it purported to sanction his termination. He points to the fact that the 2nd Respondent was a full-time employee of Moi Eldoret University while serving as Chairperson of the Council, contrary to Article 77(1) of the Constitution and section 26(1) of the Leadership and Integrity Act. He also highlights the fact that the 3rd Respondent simultaneously served on the Bureti Technical and Vocational Training Institute governing body, contrary to the applicable TVET requirements. Moreover, he contends that the Respondents were hand-picked and appointed without a competitive, merit-based process, contrary to Articles 10, 73 and 232 of the Constitution and sections 36 and 37 of the Public Service Act. 6. In view of the foregoing, he avers that his constitutional rights under Articles 27, 28, 35, 41 and 47, particularly the rights to non-discrimination, human dignity, access to Page 8 of 19

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information, fair labour practices and fair administrative action were violated. Additionally, he contends that Articles 10, 73 and 232 concerning good governance, integrity, accountability, impartiality, merit and competitive recruitment, as well as Chapter Six of the Constitution were violated. He invokes sections 6, 7, 8, 9, 10, 12, 25, 27, 28, 29, 30, 31, 32 and 33 of the Leadership and Integrity Act in relation to alleged abuse of public trust, improper orders, falsification and concealment of information and other misconduct, and sections 46 and 47 concerning liability and penalties. He also relies on the TVET Act, the Public Service Act, the Kisii National Polytechnic Legal Order No. 93 of 2016 and the Access to Information Act. 7. The Respondents neither entered appearance nor filed responses. The Petition was canvassed by way of written submissions. Petitioner’s Submissions 8. The Petitioner identifies four issues for determination, namely: Page 9 of 19

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(a) Whether his rights under Articles 27, 35, 41 and 47 of the Constitution were violated; (b) Whether he was constructively dismissed from employment; (c) Whether the Governing Council of Kisii National Polytechnic was unlawfully constituted; and (d) 9. On Whether he is entitled to the reliefs sought. the first issue, the Petitioner submits that the Respondents violated his constitutional rights under Articles 27, 35, 41 and 47 of the Constitution. On Article 27, he asserts that although twenty-seven employees were appointed contemporaneously, he was selectively denied confirmation despite attaining a satisfactory performance score of 93%. He contends that the Respondents’ subsequent request for a proper appraisal, made after his termination, contradicted underperformance and the demonstrated allegation of differential and discriminatory treatment. He relies on Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR and GMV v Bank of Africa Kenya Limited [2013] eKLR for the Page 10 of 19

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proposition that discrimination may be inferred from differential treatment without lawful or objective justification. On Article 35, the Petitioner submits that he requested documents relating to his termination but the Respondents failed to furnish them. He contends that this denied him access to information necessary to challenge the decision and violated Article 35 and sections 4 and 5 of the Access to Information Act. He relies on Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, where the Court underscored the importance of access to information to transparency and accountability. Regarding Article 41, the Petitioner submits that his right to fair labour practices was violated because he was terminated without disciplinary proceedings, a hearing or a valid performance appraisal, and his salary was unlawfully withheld. He relies on sections 41, 43 and 45 of the Employment Act and the decision in the cases of Kenfreight (EA) Limited v Benson K Nguti [2016] eKLR, Postal Corporation of Kenya v Andrew K Tanui [2019] eKLR and Banking Insurance & Finance Union (Kenya) v Bank of India [2015] eKLR. He further relies on Peterson Ndung’u & 5 others v Kenya Power Page 11 of 19

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& Lighting Company Limited [2014] eKLR in support of his contention that arbitrary withholding of salary violates Article 41. 10. As to violations of Article 47, the Petitioner submits that the decision terminating his employment was unlawful, unreasonable and procedurally unfair. He points to contradictory Governing Council meeting dates, the absence of a valid appraisal, failure to accord him a hearing, denial of access to relevant documents and lack of lawful quorum. Relying on Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture [2016] eKLR, he submits that legality, rationality and procedural propriety are constitutional requirements applicable to public bodies. He therefore contends that the impugned process violated Article 47 and the Fair Administrative Action Act. 11. On constructive dismissal, the Petitioner submits that the cumulative conduct breached the of the Respondents fundamentally employment relationship and rendered continued employment intolerable, thereby amounting to Page 12 of 19

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constructive dismissal. He asserts that the Respondents unlawfully withheld his salary, subjected him to contradictory administrative directives, denied him procedural fairness, interfered with his office and engaged in conduct intended to frustrate his continued employment. He relies principally on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, which adopted the principles in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, as well as Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] eKLR, Lokamiti & 4 others v Olsuswa Farm Limited [2025] KEELRC 992 (KLR) and Deya v Safaricom [2022] KEELRC 13561 (KLR). He submits that persistent withholding or delayed payment of salary and other fundamental breaches may constitute a hostile working environment and amount to constructive dismissal. He consequently contends that the cumulative breaches destroyed the mutual trust and confidence underpinning the employment relationship and violated Articles 27, 41 and 47 of the Constitution and sections 41, 43 and 45 of the Employment Act. Page 13 of 19

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12. On the constitution of the governing council the Petitioner submits that the Governing Council was unlawfully and unconstitutionally constituted and consequently lacked authority to make the impugned decisions. He asserts that the 2nd Respondent simultaneously held full-time employment at Moi University contrary to Article 77(1) of the Constitution and section 26 of the Leadership and Integrity Act; that the 3rd Respondent simultaneously served in another TVET institution contrary to the TVET Act; that the 1st Respondent was deployed without lawful competitive recruitment; and that the Council lacked the requisite quorum. He relies on Article 232(1)(g) of the Constitution and sections 36 and 37 of the Public Service Commission Act, which require merit and fair competition in public appointments. He further relies on County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR in support of the proposition that constitutional and statutory requirements governing public appointments and integrity standards are binding. He therefore submits that decisions made by the Page 14 of 19

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impugned Council, including his termination, were undertaken without lawful authority and are consequently null and void. 13. On the reliefs, the Petitioner submits that having established constitutional, statutory and contractual violations, he is entitled to the declaratory, compensatory and other reliefs sought. He relies on Article 23(3) of the Constitution and contends that the evidence established that his termination was procedurally unfair and unlawful, having occurred without disciplinary proceedings, a valid performance appraisal or a hearing, despite his alleged 93% appraisal score. He further submits that his salary and other employment benefits were unlawfully withheld. Relying on Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR) and Kenfreight (EA) Limited v Benson K Nguti (supra), he reiterates that termination must satisfy both substantive and procedural fairness. He also relies on Republic v Kirinyaga University College & 2 others ex parte Isaya Kamau Kagwima [2015] KEHC 3283 (KLR) for the proposition that decisions made without Page 15 of 19

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lawful quorum are nullities ab initio. In support of the constitutional damages, he relies on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the court held that constitutional damages serve to vindicate infringed rights and deter future violations. As for exemplary damages for oppressive or arbitrary conduct he cites Obongo & another v Municipal Council of Kisumu [1971 E.A. 91, which underscored that exemplary damages are awardable where public officers act oppressively, arbitrarily and in abuse of office. Consequently, he urges the Court to allow the Petition with costs. Disposition 14. The Petition herein relates to termination of the Petitioner’s services in 2021. The Petitioner asserts there was non-payment of salary resulting in his claim that his rights under Articles 1, 2, 3, 10, 19, 22, 23, 27, 28, 35, 41 and 47 of the Constitution were abridged. The Petitioner averred that persistent withholding or delayed payment of salary and other fundamental breaches constitute a hostile Page 16 of 19

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working environment and may lead to constructive dismissal. The Petitioner asserts that his right to fair labour practices was violated because he was terminated without disciplinary proceedings, a hearing or a valid performance appraisal, and his salary was unlawfully withheld. In his case, the Petition was presented to Court in 2025. The alleged breaches occurred in 2021 a period slightly over 4 years prior. Why did the Petitioner wait for 5 years to assert his dismissal was unfair, unlawful and unconstitutional? It is apparent the Petitioner had valid grievances against the Respondents if the pleadings before me are anything to go by. He however used this Petition to bypass limitation of actions in relation to his claims for salary not paid and the dismissal without adherence to section 41 of the Employment Act. 15. The elevation of this ordinary employment dispute to the constitutional sphere was wrong. Nevertheless, it is the duty of the Court to evaluate whether there was a breach of any of the Petitioner’s constitutional rights. A constitutional right when infringed must be articulated with immense particularity. In the Petitioner’s case the alleged breaches of Articles 1, 2, 3, 10, 19, 22, 23, 27, 28 and 35 were added to Page 17 of 19

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give flavour to his Article 41 and 47 rights which are well covered in the Employment Act. 16. It is alleged the Respondents withheld the Petitioner’s salary or paid it late. If this was done, then the Respondents breached the rights of the Petitioner to fair labour practices. Any employee who renders his service is entitled to pay for work done and to boot, within a reasonable period after the pay was due. A delay of a few days would be conscionable. No specific sum was sought as unpaid salary. The Petitioner merely sought a declaration that there was entitlement to employment in terms of prayers a) and b) of the Petition which this Court declines. The termination was meted out on 30th March 2021 and no action was taken to seek redress save for this petition which is worded in an obtuse manner. The Petition before me therefore fails and is dismissed albeit with no order as to costs. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Nzioki wa Makau, MCIArb. Page 18 of 19

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JUDGE Page 19 of 19

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