Enock Omoro Ogera v Nairobi City County & another

The petition is that the petitioner was reinstated to his employment through a letter dated 7 October 2009. The 1 st respondent introduced unfair and unlawful terms to the effect that the period from July 1992 to September 2009 be treated as unpaid leave. However, upon reinstatement, the petitioner was entitled to full salary payment for the entire period of employment. Upon reinstatement, the petitioner protested the unpaid term and sought payment for the period. The 1st respondent, through the human resources department, acknowledged and agreed with the claim. The 1st respondent calculated the accumulated payment at Ksh 2,897,584.70, which it was to remit unconditionally. Upon tabulating the dues, the petitioner had a legitimate expectation that the 1st respondent would pay him. He persisted with his demands for payment without success. However, the 1st respondent stopped assigning him duties from 12 July 2012, suspended him from duty, and informed him of his employment status, leaving him in limbo until the letter dated 21 May 2013, when it issued a decision. The petitioner is of the view that he had a legitimate expectation that he would be paid Ksh. 2,897,584.70, but the 1st respondent remained adamant and refused to pay. This was in breach of the petitioner's constitutional rights, and the petition is justified under Article 165(5) (b) and (d) of the Constitution. Under Article 22 of the Constitution, the petitioner has the right to assert his rights. The petition is anchored under Article 10(2) (b), 19, 21, 27, 28, 41, 43, 47, 236, and 259 of the Constitution. The petitioner seeks the following: a) A declaration that the summary dismissal by the 1st respondent on 16 July 1992 be held as unlawful and unconstitutional. ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 2

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b) A declaration that the imposition of an unpaid leave condition for the period of July 1992 to September 2009 upon the reinstatement on 7 October 2009 be held unlawful and unconstitutional. c) A declaration that the actions of the respondents, including the termination of employment and imposition of unfair leave conditions and conditional reinstatement and refusal to pay back wages, were contrary to the Constitution. d) A declaration that the petitioner is entitled to the sum of Ksh. 2,897,584.70 payable and owed by the respondents to the petitioner. e) An order compelling the respondents to release to the petitioner the sum of Ksh. 2,897,584.70, together with accrued interest at court rates for the period from 2012 to date, until paid in full. f) An order and finding that the sum of Ksh. 2,897,584.70 has accrued interest at 12% per annum until payment in full. g) An order directing the 1st respondent to provide a full and accurate accounting of all other outstanding emoluments and benefits due to the petitioner, including house allowance for the period July 1992 to September 2009, and remit all unpaid pension contributions for the entire duration of employment. h) An order for payment of general damages for prolonged distress, humiliation and emotional anguish in violation of constitutional rights. i) Costs of the petition. There is no supporting affidavit to the petition. In reply, the respondents filed the Replying Affidavit of Victor Juma, an administrative officer II employed by the 1st respondent and authorised to reply herein. He avers that, based on work records relating to the petitioner’s employment, on 22 September 1989 he was appointed headman. In June 1992, it was reported to the Director, City Inspectorate Department, that the petitioner had, between 1990 and 1991, collected ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 3

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the sum of Ksh. 38,000 from members of the public on the pretext that he would secure them employment with the then Nairobi City Commission, and he admitted that he had borrowed the money from complainants, as recorded in the Finance Committee’s recommendations. The Finance Committee recommended that the petitioner be summarily dismissed for gross misconduct, and the Nairobi City Commission approved it. By notice dated 26 June 1992, the Commission communicated the decision. The petitioner did not challenge the dismissal until 16 years later, by letter dated 17 June 2008, when he appealed to the Public Service Commission through the Town Clerk, City Council of Nairobi. Before the appeal could be determined, following a joint staff council meeting held on 21 October 2008 between the City Council of Nairobi and the Kenya Local Government Workers Union, the petitioner, by letter dated 8 January 2009, voluntarily withdrew the appeal and requested that the matter be referred back to the Council. The Permanent Secretary, Ministry of Local Government, acknowledged the withdrawal of the appeal in a letter dated 15 January 2009. Following the appeal withdrawal, a resolution was reached at a staff meeting held on 23 January 2009; the City Council of Nairobi, at its meeting held on 24 September 2009, approved the petitioner’s reinstatement to the Council’s payroll. The petitioner was notified through a letter dated 7 October 2009 that he was reinstated with effect from the date he reported for duty and that the period of absence would be treated as unpaid leave. The petitioner did not object or appeal against the letter, and the decision to treat his period out of work as unpaid leave for 13 years. Instead, he reported for duty and worked under the terms of the reinstatement. The petitioner continued in his employment with the 1st respondent until 2 July 2012, when his service ended, and terminal dues were paid in full for ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 4

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the period from October 2009 to July 2012. The payment vouchers are dated 2 November 2021. Nothing is pending unpaid to the petitioner. It was not until 22 March 2022, 13 years later, that the petitioner challenged the reinstatement letter dated 7 October 2009. He purported to file an appeal to the Nairobi City County Service Board, claiming he was humiliated and hence the period of unpaid leave should be compensated. Juma avers that the respondents, having considered the appeal, resolved to uphold the board resolution dated 23 January 2009 on the basis that the appeal was filed out of time, 13 years later. The Commission communicated the decision to the petitioner by letter dated 22 August 2022. The Commission also advised the petitioner of his right to appeal to the Public Service Commission within 90 days, which he exercised. He filed County Appeal No. 075 of 2022, and the Commission delivered a decision on 5 December 2022, finding that the appeal was out of time and in contravention of Regulation 10(1) of the Public Service Commission (County Appeals Procedures) Regulations, and dismissing it as timebarred. The petitioner was notified that, pursuant to section 88 of the Public Service Commission Act and Regulation 24 of the Public Service Commission (County Appeals Procedures) Regulations, he could apply for a review of the PSC decision within 6 months, but he did not. The petitioner took no further steps until the filing of this petition 16 years after the decision of 7 October 2009, which is over 3 years after the County Public Service Board’s decision of 22 August 2022. The petitioner is thus guilty of laches. He has failed to exhaust dispute resolution mechanisms before the PSC through the review process as advised on 5 December 2022. The petition concerns payment for the period July 1992 to September 2009, for which he filed an appeal and then withdrew it upon ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 5

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reinstatement. The petitioner cannot justify the reliefs sought, which are time-barred, and the petition should be dismissed with costs. Submissions The petitioner relies on the claim that the respondents dismissed him from employment on 16 July 1992. He appealed against the summary dismissal, and on 7 October 2009 he was reinstated on condition that the period out of employment be treated as unpaid leave. He asserts that this was unconstitutional, unfair and unlawful; he should be paid the due salary and benefits of Ksh 2,897,584.70, as tabulated by the Human Resources Department. He had a legitimate expectation that upon reinstatement, his back salaries and benefits would be paid. The respondents assert that the petitioner was dismissed on 16 July 1992 for gross misconduct. He appealed and was conditionally reinstated, with the period out of work treated as unpaid leave. He appealed, but he withdrew it. Employment has since terminated, and all claims are timebarred. The petitioner filed a petition. Although the petitioner cites various constitutional provisions, the core issue in dispute is the payment of 2,897,584.70 alleged to be due for the unpaid leave period from 16 July 1992 to 7 October 2009. For the constitutional rights allegedly violated, the petitioner is seeking general damages. The petition arises from the employment relationship. The employment ceased on 2 July 2012. Filing of a petition instead of a Memorandum of Claim does not extend the time to file an employment dispute in terms of section 89 of the Employment Act (the Act). The Act, the Employment and Labour Relations Court Act, and the Employment and Labour Relations Court (Procedure) Rules regulate claims arising out of an employment relationship. Under ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 6

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section 89 of the Act, a claim should be filed in court within 3 years. Where the matter concerns a continuing injury, including a claim for unpaid salaries, the claim should be brought within 12 months of the date the injury ceased. In German School Society v Helga Ohany [2017] KECA 112 (KLR), the court held that section 89 of the Act is mandatory. The court is denied discretion to entertain a claim outside the 3-year period, or to entertain a claim relating to continuing injury within 12 months. This position is reiterated in Muthee v Kenya Power & Lighting Company Ltd [2025] KEELRC 3342 (KLR) that: “The principles underlying continuing wrongs and recurring/successive wrongs apply in employment disputes. A ‘continuing wrong’ refers to a single wrongful act that results in a continuing injury, while ‘recurring or successive wrongs’ occur periodically, with each instance giving rise to a distinct and separate cause of action.” In this case, the petitioner’s employment ceased on 2 July 2012, and the PSC invoked its jurisdiction and issued a decision thereon on 5 December 2022; accordingly, the petition herein is not the result of the PSC procedures at all. It relates to a claim based on what he considers to be legitimately owed from October 2009 to July 2012. The claim is time-barred in all respects. The petition cannot seek an extension of time based on alleged violations of constitutional rights. Time does not stop running simply because one has claimed constitutional rights and fundamental freedoms. In Thuita Mwangi & another v Attorney General & another, Petition No. 250 of 2019, the court held that filing a claim seeking constitutional rights protections, such as a claim of discrimination, does not extend the 3 years to file suit under Section 89 of the Act. The same position was reiterated in Ambongo Abuso v Nairobi City County [2021] eKLR. ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 7

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Section 89 of the Act is mandatory. A time-barred claim cannot be cured by any other method. The court lacks jurisdiction to proceed with a time-barred claim, even if couched as a petition. In any event, under Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules, a party may file a Memorandum of Claim seeking employment rights and including violations of constitutional rights and freedoms. Unnecessarily invoking the constitutional petition route to circumvent the mandatory timelines under the Act is an abuse of the court process. In Jane Angila Obando v TSC & 2 others, Petition No.4 of 2020, the court held that a petitioner cannot avoid the application of section 89 of the Act on time, taking into account the position held, the nature of the claims made, and the remedies sought. In this case, the fact of cessation of employment and the attendant terminal dues, if any, accrued from 2 July 2012. Any claim arising out of the petitioner's employment with the respondents was governed by section 89 of the Act. It does not matter what procedures he followed in addressing his claim from October 2009 to July 2012; such claims ought to have been addressed within the 3-year mandatory timeline, or within 12 months for the continuing injury of alleged non-payment of salaries. The inherent jurisdiction of the court is not properly invoked. To sit back from July 2012 and file a claim for unpaid salaries after more than 3 years is an abuse of the court's process. Accordingly, the petition is not properly filed, the claims are timebarred, and the court lacks the necessary jurisdiction. The petition is hereby dismissed with costs to the respondents. Delivered in open court this 30th day of September 2026 ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 8

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M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and …………………………………..……… ELRC NAIROBI JUDGMENT PETITION NO. E096 OF 2026 9

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