Mike Kelvin Muthumba v Kenya Wildlife Service

JUDGMENT 1. The Petitioner, aggrieved by the disciplinary proceedings leading to termination of his employment with the Respondent, commenced this suit vide a further Amended Petition dated 26 th March 2026 seeking:a) A declaration that the Petitioner’s right to fair Administrative Action guaranteed under Article 47 of the Constitution has been violated. b) A declaration that the Petitioner’s right to fair hearing under Article 50 of the constitution has been violated. c) A declaration that the Petitioner’s right to Equality and Freedom from Discrimination under Article 27 of the constitution has been violated. d) A declaration that the termination of services of the petitioner was irregular, unprocedural, illegal, unconstitutional hence null and void ab initio. e) A declaration that part of Section 11.5.1 of the Kenya Wildlife Service Human Resource Policy & Procedures Manual that reads “AND DETERMINE” is unconstitutional and therefore invalid, null and void. f) That an order of Judicial Review in the nature of Certiorari do issue to bring into this court to quash the letter Ref: KWS/Conf. 11476 dated 16th January 2025 terminating the services of the Petitioner herein. g) That an order of Judicial Review in the nature of Certiorari do issue to bring into this court to quash the letter Ref: KWS/Conf. 11476 dated 11th July 2024 interdicting the Petitioner herein. h) That an order of Judicial Review in the nature of Certiorari do issue to bring into this Honourable Court to quash the decision of the Board Committee on Finance and Human Resource dated 1st September 2025 upholding the decision of the Respondent/Management to terminate the services of the Petitioner. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 2 | 33

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i) That an order of Judicial Review in the nature of Certiorari do issue to bring into this Honourable Court to quash the decision of the Board of Trustees dated 10th September 2025 recommending upholding the decision of the Respondent/management to terminate the services of the Petitioner. j) That an order of Judicial Review in the nature of Certiorari do issue to bring into this Honourable Court to quash the decision of the Respondent/Management vide letter Ref: KWS/Conf. 11476 (44) dated 19th September 2025 communicating the upholding of the Petitioner’s termination of services vide letter Ref: KWS/Conf.11476 dated 16th January 2025. k) That an order of Judicial Review in the nature of Mandamus do issue directing the Respondent for the immediate and reinstatement of the Petitioner to the position of Senior Principal Land Management Officer (Job Group 6). l) That an order of Judicial Review in the nature of Mandamus do issue directing the Respondent to pay the Petitioner any all pending salaries, allowances and benefits accrued to him while on interdiction. m) An order for the Respondent to pay the Petitioner exemplary damages for discriminating against him in application of the law leading to the termination of his services. n) An order for the Respondent to pay the Petitioner aggravated damages for failure to accord the Petitioner procedural fairness in the process leading to the termination of his services. o) An order for the Respondent to pay the Petitioner general damages for psychological torture, anguish and emotional distress. p) Costs of this petition be borne by the respondent. q) That the respondent to comply with the orders above within 30 days and to report on compliance. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 3 | 33

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2. The Petition was filed alongside the Supporting Affidavit of the Petitioner sworn on 26 th March 2026, with the bundle of documents in support of the Petition attached. 3. In response to the said Amended Petition, the Respondent filed a Notice of Preliminary Objection dated 9th July 2025; Grounds of Opposition dated 8th May 2026; and a Replying Affidavit sworn by VALENTAIN KANANI on 8th May 2026. 4. To counter the Respondent’s averments, the Petitioner filed a Supplementary Affidavit sworn on 16th May 2026. The Petitioner’s case in summary 5. The Petitioner’s case is that he was initially employed by the Respondent on 26th November 2021 as a Superintendent Land Surveyor I/Principal Land Surveyor in the Land Surveying Section after successfully participating in a competitive recruitment process. On 1 st October 2022, the Petitioner was promoted by the Respondent on merit to the position of Senior Principal Land Management Officer, but on 11th July 2024 he was served with a letter of interdiction. 6. Prior to the Petitioner’s interdiction, in line with directions issued by the Respondent, the Petitioner, together with six (6) other officers, planned to conduct a boundary survey of Kora National Park to facilitate the fencing of the National Park. An Imprest was advanced to the Petitioner and the six (6) other members of the surveying team on 22nd November 2023 to meet the logistical requirements for the exercise. As a result of the heavy rains and floods experienced in December 2023, the Warden in charge of the Park, together with the Senior Assistant Director – Eastern Conservation Area, postponed the exercise to survey the boundary of Kora National Park. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 4 | 33

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Following the postponement, the Petitioner states that he continued to undertake other assignments assigned to him while awaiting the normalisation of the situation in Kora National Park. 7. It is stated that some activities that the Petitioner proceeded to undertake were: in January 2024, the Respondent directed the Petitioner to travel to Kiwayu Island in Lamu County to undertake a survey exercise involving the setting aside of 10 acres of land for the construction of a primary school for the local community, and he successfully completed the assignment; in February 2024, the Respondent directed the Petitioner together with another officer to undertake a survey exercise at Hell’s Gate National Park involving the survey of 1000 acres of land jointly with KenGen for geothermal exploration activities, which exercise took approximately 50 days, and included the joint compilation of the survey data in Nairobi which was duly approved by the Respondent; on 26th May 2024, the Respondent directed the Petitioner to urgently represent it at a public hearing organized by the National Land Commission in Malindi, from which he returned to Nairobi on 1 st June 2024. 8. It is averred that during all the listed activities, the survey of the Kora National Park Boundary continued to be postponed at intervals of approximately two weeks by the Warden in charge due to adverse weather conditions and insecurity in the region. The management later directed that the exercise would commence in early June 2024, but it was again reported that tribal skirmishes had been experienced within the region, which caused the Director, Wildlife & Community Services, to later stand down the team due to the renewed insecurity, and the survey exercise was rescheduled for 8th July 2024. After the exercise was rescheduled, the Petitioner avers that he applied for 10 days' leave from 24th June 2024 to 7th July 2024 in preparation for the survey exercise scheduled for 8th July 2024, which was expected to last 28 days. When he resumed work from leave, he was provided with a letter communicating that he was required to surrender the J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 5 | 33

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Imprest by 5th July 2024. He was also served with a Letter of Interdiction dated 11 th July 2024 by the Deputy Director, Human Resource & Administration through the Senior Assistant Director, Land Management, for allegedly failing to surrender the Imprest on time. 9. The Petitioner avers that he immediately proceeded to the office of the Deputy Director, Human Resource Management & Administration to inquire about the interdiction, but the Deputy Director declined to accept any response from the Petitioner and instead demanded that he vacate the premises immediately, stating that a decision had already been made. 10. The Petitioner complains that the letter requiring that he surrenders the Imprest by 5 th July 2024 was never sent to the address or contact details that he had provided while on leave, and he only became aware of its existence on 11th July 2024. 11. During the interdiction period, the Petitioner states that he was required to report to the Respondent once every two weeks and was placed on half salary and house allowance. The Respondent also authorized the deduction of the Imprest sum of Kshs. 101,585/= from the Petitioner’s salary, as reflected in his June 2024 pay slip. 12. The Petitioner states that on 17th July 2024, he wrote to the Respondent requesting particulars of the alleged misconduct since the letter of interdiction did not provide sufficient details. The Respondent reverted vide a letter dated 19th August 2024 but failed to provide the full particulars of the alleged offence. Vide a letter dated 2nd September 2024, the Petitioner States that he again wrote to the Respondent, informing them that the information they were seeking was in their custody, as he had already been interdicted and denied access to the office. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 6 | 33

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13. The Petitioner admits that he was invited to appear before a Disciplinary Panel scheduled for 23 rd October 2024, vide a letter dated 15th October 2024, which panel had been constituted by the Deputy Director, Human Resource & Administration, and attended the same, but states that he was not supplied with any information or evidence that the Respondent intended to rely on either prior to or during the hearing. Specifically, he questioned the legitimacy of the Disciplinary Panel during the hearing, but was informed that the panel had been appointed by the Deputy Director, Human Resource & Administration through an internal memo. At the conclusion of the hearing, he requested for the minutes of the proceedings to facilitate the filing of his appeal, and although the panel indicated that the same would be availed, they were never supplied. It is averred that on 17th January 2025, the Respondent sent him an email containing a Letter of Termination of Employment communicating management’s decision to terminate my services. Prior to the termination of the Petitioner’s employment, the Respondent continued to deduct the Imprest from the Petitioner’s half salary up to the date of termination. 14. The Petitioner states that in light of his right to appeal to the Respondent’s Director General within six (6) weeks, which was affirmed in the termination letter dated 17th January 2025, the Petitioner duly filed an appeal against the decision on 20th January 2025. On the same day, the Petitioner wrote to the Director General requesting copies of the proceedings and documents relating to the disciplinary process. The Respondent failed to respond until 14 th May 2025 when the Petitioner visited the office of the Deputy Director, Human Resources & Administration while serving a Notice of Intention to Sue under the Fair Administrative Action Rules, 2024, whereupon a letter dated 23rd February 2025 was retrieved from the file acknowledging the Petitioner’s earlier letter, and indicating that he would be invited before the Disciplinary Appeals Advisory Committee (DAAC) and supplied with the information he had requested. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 7 | 33

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15. The court is urged to note that the Respondent invoked Regulation 93(10) of the Public Finance Management Regulations, 2015 to deduct the Imprest from the Petitioner’s salary for the entire period that he was under interdiction, but still proceeded to terminate his services despite the fact that the Regulation does not contemplate termination of employment as part of disciplinary action. 16. Upon serving the present Petition on the Respondent, the Respondent, on 19th June 2025, vide a letter of the same date, rushed to supply the information relating to the disciplinary proceedings which had previously been withheld from him. They furnished him with a report authored by the “Independent Disciplinary Panel”, which report was confirmed by the members of the said panel on 6th November 2024. Part 2 of the said Report indicates that the Panel derives its authority from Sections 11.5.1 and 2.14.1 of the Respondent’s Human Resource Policy and Procedures Manual, yet the said provisions do not establish nor contemplate the establishment of such a disciplinary panel. Further, the Respondent furnished the Petitioner with the minutes of meetings allegedly held by the Human Resource Management Advisory Committee (HRMAC) on 12 th September 2024 and 07th November 2024. According to the Petitioner, the minutes of the said HRMAC meetings clearly demonstrate that the Petitioner was never summoned nor accorded an opportunity to appear before the Committee, contrary to the provisions of Section 11.8.5 of the Human Resource Policy and Procedures Manual. Notably, HRMAC relied entirely on the report of the irregularly constituted disciplinary panel, and recommended that the Imprest be recovered from the Petitioner’s salary and that he be demoted to the position of Principal Land Management Officer. The Respondent went against the HRMAC's recommendation and terminated the Petitioner’s services by memo reference KWS/DG/223 dated 15th January 2025, issued by the Director General, which purported to rely on Section 11.5.1 of the Human Resource Policy and Procedures Manual. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 8 | 33

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17. In line with Court directions made on 20th August 2025 that the Petitioner’s appeal be heard and determined by the Board of Trustees on or before 1st September 2025, it is stated that the Petitioner was invited to appear before the Committee of the Board on Finance and Human Resource, and his appeal was heard. Nonetheless, the said Committee upheld the termination of his services. The Petitioner challenges the proceedings before the Committee on the premise that the Director General participated in the proceedings, notwithstanding the fact that he had earlier initiated, directed and determined the impugned disciplinary process culminating in the termination of the Petitioner’s employment. The recommendation of the Committee on Finance and Human Resource was thereafter deliberated upon by the Board of Trustees, who subsequently upheld the termination of the Petitioner’s services and communicated their decision to the Petitioner through a letter ref: KWS/Conf.11476 (44) dated 19th September 2025. The deliberations and decision of the Board of Trustees are also impugned by the Petitioner on the basis that the Director General again sat and participated in the proceedings notwithstanding the fact that he was the very officer who had directed the termination of my services. 18. The Petitioner takes the view that in the disciplinary process relating to him, the Director General usurped authority which is not conferred upon him by Section 11.5.1 of the Human Resource Policy and Procedures Manual, thereby negating and undermining the role and mandate of HRMAC as established under the said Manual. Further, he states that the Director General failed to consider and act upon the recommendations and advice of HRMAC and instead unilaterally directed the termination of the Petitioner’s services. The decision by the Director General ought to have been anchored on a proper point of law per Regulation 93(6) of the Public Finance Management Regulations, 2015, which it was not. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 9 | 33

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19. The Petitioner denies that the letter dated 7 th June 2026 purporting to have been sent by him to the Respondent originated from him, and states that he requested to see the original letter for verification and authentication during the disciplinary hearing, but his request was denied. Further, no investigations were carried out into his alleged use of the subject public funds for purposes other than their intended use; hence, this claim is unsupported by evidence. The Petitioner also argues that Regulation 93(5) of the Public Finance Management Regulations, 2015 contemplates the surrender of the imprest upon return to the duty station after undertaking the authorized assignment. Since the subject activity was postponed to 8th July 2024, the Petitioner had not departed from his duty station to undertake the said exercise, and consequently the imprest had not fallen due for surrender at the material time. The Respondent’s allegations of failure to surrender the imprest were therefore premature, unfounded, and contrary to the applicable legal framework governing imprest management. The Petitioner points out that the Respondent has not produced any evidence demonstrating that his colleagues who received imprest for the subject activity surrendered them as claimed, hence states that the disciplinary action against him was selective, discriminatory, and actuated by unequal treatment contrary to the principles of fairness, equity, and legitimate administrative action. 20. The Petitioner’s case is that by condemning him unheard through a skewed and irregular disciplinary procedure, the Respondent violated the Petitioner’s Constitutional rights to fair hearing under Article 50, equality and freedom from discrimination under Article 27, and the right to fair administrative action under Article 47; Sections 5, 41 and 45 of the Employment Act, 2007; Regulation 93 (6&7)) of the Public Finance Management Regulations of 2015 that requires all unsurrendered imprest to be recovered from the salary and any accounting officer who fails to comply with that statutory provision commits an offence under the Act, and the Respondent’s own Human Resource Policy and Procedures Manual (March 2023 Edition). J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 10 | 33

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Respondent’s case in brief 21. The Respondent challenges the further amended petition, on the premise that it is against public interest to grant the orders sought by the Petitioner as Imprest Warrant No. 253375 the sum of Ksh.1,737,980/- which was issued to the Petitioner by the Respondent on 22nd November, 2023 and was due on 22nd December, 2023, whose funds were drawn from public funds remains unaccounted for or surrendered by the Petitioner to date. Further, the Respondent states that they complied with due process in pursuing disciplinary action against the Petitioner, leading to his termination of service. They state that the Petitioner has not demonstrated that no other remedy is available to him in law; that the Petition does not raise constitutional questions; and that it offends the doctrine of constitutional avoidance and exhaustion, contrary to the Public Service Act, Cap. 185 of the Laws of Kenya. 22. The Respondent admits that the Petitioner was its employee in the position of Superintendent Land Surveyor I, having been employed vide the letter dated 21st October 2021, and that he was promoted to the position of Senior Principal Land Management Officer effective 1st October 2022. 23. It is averred that on 22nd November 2023 the Petitioner together with other members of the Lands Department applied for temporary imprest for undertaking the activity of boundary alignment, survey and marking of the North Eastern Boundary of Kora National Park, a park under the Management of the Respondent. Specifically, the Petitioner applied through imprest warrant No. 253375 for the sum of Ksh. 1,737,980/- was meant to cover his travel, accommodation, and the incidental expenses of the exercise, and the same was due on 22nd December 2023, as appears on the face of the warrant. The Respondent confirms that the funds were disbursed to the Petitioner's bank account on 23rd December 2023. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 11 | 33

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24. It is admitted that the activity was postponed on various occasions due to various reasons, including heavy rains and insecurity in the area. As the activity was not undertaken, the Petitioner was required to surrender the imprest and return the funds to the Respondent as provided in the Public Finance Management Act, Cap. 412A. Later, the Senior Assistant Director Eastern Conservation Area, in whose jurisdiction the Kora National Park falls, wrote to the Assistant Director in Charge of Meru Kora National Park on 31st May 2024 seeking to reactivate the boundary alignment activity, and the communication was transmitted to both the Petitioner and the Respondent's Deputy Director, Accounts Division. Upon receiving the communication, the Deputy Director, Accounts Division, responded on the same day and indicated that all imprests issued in respect of this activity were long overdue and ought to be surrendered by 30th June 2024. This response was also transmitted to the Petitioner. 25. The Respondent states that on 7th June 2024, the Petitioner wrote to the Respondent in respect of imprest warrant No. 253375 explaining that he had utilized the funds for purposes other than the ones for which the money had been taken, which was contrary to the Public Finance Management (National Government) Regulations, 2015, which require that an imprest be utilized for the purpose for which it was taken. According to the Respondent, since the activity for which the funds were allocated did not take place, a fact that is not contested by the Petitioner, the funds were subject to a surrender of imprest within the timelines stipulated in the Regulations. However, the Petitioner redirected the funds to other purposes, despite being fully aware of the Regulations. 26. On 24th June 2024, the Respondent's Finance and Accounts Division notified the Human Resource and Administration Division via a memo that the imprests applied for by the Lands Office team for the activity of boundary alignment, survey and marking of the North Eastern Boundary of Kora National Park, including the Petitioner’s imprest, were still outstanding, although they were J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 12 | 33

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originally due for surrender or accounting on 22 nd December 2023. Other team members surrendered/accounted for their imprests except the Petitioner. A reminder was sent to the Petitioner on 26th June 2024, notifying him that he had failed to account/surrender the imprest warrant No. 253375 amounting to Kshs. 1,737,980/-, contrary to Rule 93(5) of the Public Finance Management (National Government) Regulations, 2015, and cautioned him that his failure to account/surrender the imprest amounted to a serious breach of discipline, and further instructed him to account/surrender the imprest no later than 5th July 2024. The Petitioner still failed to comply, prompting the Director General of the Respondent to authorize the recovery of the funds in installments through deductions from the Petitioner's salary, as provided in Regulation 93(10) of the Public Finance Management (National Government) Regulations, 2015. It is the Respondent’s case, therefore, that the Petitioner was well aware that he was required to surrender the subject imprest. 27. Further, disciplinary action was taken against the Petitioner by instituting disciplinary proceedings against him for abuse of imprest as provided in Rule 93 (10) of the Public Finance Management (National Government) Regulations, 2015. This was communicated to the Petitioner vide a letter dated 11th July 2024 which also indicated that recovery of the mismanaged imprest had commenced and that he would be deducted the sum of Kshs. 101,585 per month. The Plaintiff was requested, in a language that he understands, to show cause why the proceedings against him should not be instituted, and was also informed that he was being interdicted in line with Section 11.16 of the Respondent's Human Resource Policy and Procedures Manual, 2023. 28. The Petitioner responded vide a letter dated 17 th July 2024 indicating that the letter issued to him did not contain particulars, which elicited the letter dated 19 th August 2024 from the Respondent outlining the particulars of the offenses, namely the Petitioner’s failure to account for public funds J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 13 | 33

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amounting to Ksh.1,737, 980 /- issued vide imprest warrant No. 253375. It is stated that the Petitioner further sent a letter dated 2nd September 2024 alleging that the Respondent's letter did not answer his question, but he did not deny that he failed to account for public funds as charged. Subsequently, the Petitioner was taken through the Respondent’s disciplinary process by being invited for a disciplinary hearing before an Independent Disciplinary Panel in accordance with the Respondent's Human Resource Policy and Procedures Manual, 2023 on 23rd October 2024, vide a letter dated 15th October 2024. The invitation letter set out the time and place of the hearing and informed him of his right to be accompanied by a fellow employee or any other person of his choosing, as well as that the Respondent would call its witnesses and that the Petitioner was at liberty to cross-examine them. 29. The disciplinary hearing was held before the Independent Disciplinary Panel, a sub-committee of the Respondent’s Human Resource Management Advisory Committee (HRMAC) established in accordance with the Respondent's Human Resource Policy and Procedures Manual, 2023, to advise the Respondent's Director General on all human resource management issues including disciplinary matters for all employees in job grades KWS/4 to KWS/16, the HRMAC. The Petitioner, an employee in Job Group 6, attended unaccompanied. The Respondent emphasizes that the Petitioner was given sufficient opportunity at the hearing to both make his submissions in his defence and to cross-examine the witnesses produced by the Respondent. It is stated that at no point did the Petitioner question the legitimacy of the Independent Disciplinary Panel as is clear from the minutes of the panel. Indeed, during the hearing, the Petitioner admitted that he took out imprest warrant No. 253375 amounting to Ksh. 1,737,980/- and that he had not settled the same. When confronted with the observation that his colleagues who had taken out their imprests for the same activity had surrendered their imprests, the Petitioner did not have a defence. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 14 | 33

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30. Following the hearing, the Respondent confirms that the Independent Disciplinary Panel prepared a report which was submitted to the HRMAC in line with the Public Service Commission Discipline Manual for the Public Service, 2022, who considered it and recommended the demotion of the Petitioner and the recovery of the misappropriated funds. The recommendations of the HRMAC were thereafter forwarded to the Director General as provided in the same disciplinary manual, who resolved to terminate the Petitioner’s employment in line with the powers conferred to him under Sections 11.5.1 and 11.8.6 of the Human Resource manual. The decision of the Director General was communicated to the Petitioner vide the letter dated 16th January 2025. 31. The Respondent concedes that the Petitioner lodged an appeal against the decision to terminate him from employment with the Respondent on 20th January 2025 and further requested for information through his letter of even date. He was informed that he shall be notified when the appeal is heard by the Disciplinary Appeals Advisory Committee (DAAC), vide a letter dated 23 rd February 2025. On 19th June 2025, the Petitioner was supplied with the information sought in his letter, and was advised that he could make additional submissions towards his appeal. Thereafter, the Petitioner was invited to appear before the Board of Trustees of the Respondent, specifically the Board Finance and Human Resource Committee on 1st September 2025 vide the letter dated 18th August 2026 for the hearing of his appeal lodged on 20th January 2025, attended the hearing and made representations in support of his appeal. It is admitted that the Respondent’s Director General was present during the appeal hearing, as he serves as the secretary to the Board, as provided in the Wildlife Conservation and Management Act, Cap. 376. The Committee, after considering the appeal, recommended that the Petitioner be terminated from service. This decision was ratified on 10th September 2025 by the fully constituted Board of Trustees, which again, includes the Respondent’s Director General as secretary. The decision of the Board of Trustees was communicated to the Petitioner vide a letter dated 19th September 2025. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 15 | 33

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32. It is the Respondent’s case that the Petitioner was taken through disciplinary proceedings that complied with the Respondent’s Human Resource Policy and Procedure Manual, 2023 and the Public Service Act and its attendant rules and regulations, hence he was afforded a fair hearing. The Respondent followed due process; hence, the Petitioner’s case lacks merit. In fact, the Petitioner continues to be in unlawful possession of Kshs. 1,268,220/- in public funds outstanding from imprest warrant No. 253375 the rest having been recovered in the period between June 2024 to December 2024 when he was still in the Respondent's employment. 33. The Respondent avers that the Petitioner still has a right of appeal to the Public Service Commission as provided in law, thus the Petition offends the doctrine of exhaustion. DETERMINATION 34. Following directions by the court that it would determine the Petition through written submissions, the Petitioner and Respondent filed their respective submissions. Issues for determination 35. In his submissions dated 20th May 2026, the Petitioner identified the following issues for determination: i. Whether the Respondent violated Articles 27, 47 and 50 of the Constitution together with the Fair Administrative Action Act and the Employment Act. ii. Whether the impugned decision is tainted with illegality. iii. Whether the Respondent acted irrationally and contrary to the Public Finance Management Regulations, 2015. iv. Whether the Petition is properly before this Honourable Court notwithstanding the doctrines of exhaustion and constitutional avoidance. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 16 | 33

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v. Whether the Petitioner is entitled to the reliefs sought. 36. Conversely, the Respondent filed submissions dated 4th June 2026, where they distilled three issues for determination, namely: i. Whether this Honourable court has jurisdiction to hear and determine this matter in light of the doctrine of constitutional avoidance and the doctrine of exhaustion. ii. Whether the termination of the Petitioner was fair and lawful. iii. Whether the Petitioner is precluded from disciplinary action once the Public Finance (National Government) Management Regulations on recovery of imprest were invoked by his employer. 37. The court was of the opinion that the parties were in agreement that the issues for determination in the matter were as followsa. Whether the Petition is properly before this Honourable Court taking into consideration the doctrines of exhaustion and constitutional avoidance and if (a)in the positive;b. Whether the Respondent violated Articles 27, 47 and 50 of the Constitution together with the Fair Administrative Action Act and the Employment Act. c. Whether the impugned decision is tainted with illegality. d. Whether the Respondent acted irrationally and contrary to the Public Finance Management Regulations, 2015 The law 38. Article 27 of the Constitution on the right not to be discriminated against 39. Article 47 of the Constitution on the right to fair administrative action J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 17 | 33

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40. Article 50 on fair hearing. Whether the Petition is properly before this Honourable Court taking into consideration the doctrines of exhaustion and constitutional avoidance 41. The petitioner submitted that the objection by the respondent on jurisdiction on the basis of constitutional avoidance and non-exhaustion is misconceived both in fact and in law because the present proceedings raise substantial constitutional grievances that cannot adequately be addressed through ordinary administrative channels. The Petition challenges the legality of the disciplinary structures employed by the Respondent, the constitutionality of the disciplinary process itself and the violation of multiple non-derogable procedural safeguards guaranteed under the Constitution and statute. 42. The Petitioner submits that the present Petition properly invokes the constitutional jurisdiction of this Honourable Court. While the Constitution advocates for alternative dispute resolution and particularly where a statute has provided for that mechanism, there are exemptions to that requirement. An appeal by the Petitioner to the Public Service Commission (PSC) is not an internal dispute mechanism. The Internal dispute resolution mechanism terminated at the Respondent’s Board level. An appeal to Public Service Commission is a recourse to an external, constitutionally established body that becomes available only after the employee has exhausted all internal channels. That Regulation 8 (1) of the Public Service Commission (State Corporations and Public Universities) (Disciplinary Appeals Procedures) Regulations, 2025 provide that “A person who is dissatisfied with the disciplinary control decision of a state corporation or public university may appeal to the Commission against that decision.” This Provision is not restrictive and is only applicable to the ‘decision’ of a state corporation and not the Process of arriving at that decision. It is the process of arriving at that decision that violates the Petitioners' constitutional rights which J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 18 | 33

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form the constitutional Petition before this Honorable Court for determination as to whether the Petitioners constitutional rights and fundamental freedoms have been infringed, threatened, or denied. 43. The petitioner submitted that the Public Service Commission (PSC) lacks the jurisdiction to determine matters involving the interpretation or enforcement of the Constitution. The ultimate authority to decide constitutional questions is reserved for the courts, specifically the Employment and Labour Relations Court (ELRC) for employment related disputes. The amended Petition discloses the Respondent's infringement of the Petitioner's constitutional rights; therefore, an appeal to the PSC would not provide a remedy. This includes determination of the constitutionality of a part of Section 11.5.1 of the Respondent's Human Resource Policy & Procedure Manual, 2023. That this Honorable Court is clothed with discretionary powers to exempt this Amended Petition from the doctrine of exhaustion, looking at the facts in place and the circumstances in which this Petition was filed in court. is applicable in this case because the Petitioner is not just aggrieved by the decision of the Respondent, but his constitutional rights have been violated, making it impractical for the Public Service Commission to address enforcement of rights under the Constitution. These issues transcend ordinary contractual employment disputes and directly implicate constitutional safeguards governing public administration and disciplinary proceedings. The Court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) with precision outlined two principles that the court should consider in granting an exemption to the doctrine of exhaustion at paragraphs 60, 61 and 62 of the Judgment as follows: - “60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 19 | 33

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mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.” “61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.” “62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” 44. The Petition herein directly challenges unconstitutional administrative structures, unlawful disciplinary proceedings and denial of constitutional rights. The doctrine of constitutional avoidance cannot therefore be invoked to shield unconstitutional conduct from judicial scrutiny. In Okiya Omtatah Okoiti v Attorney General 5 others 2020KEHC10296(KLR). The Honourable court held as follows:- “A Court is always possessed of residual inherent powers. Such powers allow the Court to make any orders in the wider interest of justice. It is for the Court to fashion an appropriate remedy even in instances where the Constitution and the law are silent. A Court cannot just, helplessly so, stare at a Petitioner whose rights and fundamental freedoms are trampled upon or when it is ostensibly demonstrated that the Constitution is either contravened or so threatened. Unless a Court raises to, and asserts its authority, high are chances that it may fail the calling in J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 20 | 33

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Article 3 of the Constitution. The result will, undoubtedly, be anarchy and lawlessness in the society.” 45. In Nyambu v Munza & 4 others (Petition E038 of 2024) [2024] KEHC 12101 (KLR) (2 October 2024) (Ruling) at Paragraph 31, the Honourable court noted that the doctrine of constitutional avoidance does not take away the courts jurisdiction. “Needless to mention that the doctrine of constitutional avoidance does not, of itself, divest this Court of the jurisdiction to hear and determine Constitutional Petitions. The doctrine only serves to restrain the court from hearing and determining a matter where there exists another appropriate forum that can hear and determine the matter more effectively. I say so because Article 165(3)(b) of the Constitution is explicit that: Subject to clause (5), the High Court shall have— (b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;” 46. The present dispute cannot be resolved without interrogating constitutional standards governing fair administrative action, procedural fairness, legality and equality before the law. The Court of Appeal at paragraph 31, 35 and 37 in Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Appeal 522 of 2019) [2021] KECA 322 (KLR) (17 December 2021) (Judgment) held that: - “This position notwithstanding, courts still retain the residual jurisdiction to intervene in exceptional circumstances despite the existence of an alternative remedy, as was explained by this court in Fleur Investments Limited v Commissioner of Domestic Taxes & another, [2018] eKLR: “Whereas courts of law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 21 | 33

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legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”” This Honourable Court is therefore properly seized of jurisdiction under Articles 22, 23 and 162(2)(a) of the Constitution. 47. Conversely, the respondent submitted as follows: the Respondent in their Grounds of Opposition dated 8th May, 2026 and the Replying Affidavit of Valentain Kanani of even date contends that the Further Amended Petition offends both the doctrine of constitutional avoidance and the doctrine of exhaustion effectively raising jurisdictional issues in respect to the Further Amended Petition herein. It is trite that a court cannot proceed to hear and determine a matter where it finds that it does not have jurisdiction. It must upon such finding down its tools. This position was held in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) where the Honourable Court stated in its judgment, “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… …By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision… It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.” J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 22 | 33

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48. The respondent submitted that this Honourable Court is not clothed with the requisite jurisdiction to hear and determine this matter as the Further Amended Petition offends the doctrine of constitutional avoidance. That the doctrine of Constitutional avoidance was well articulated by the Employment Court in the case of Ouma v County Government of Kisumu & 2 others [2024] KEELRC 1869 (KLR) where the Court, in striking out a Petition filed in breach of the said rule, stated as follows: Similarly, the Court of appeal in Sumayya Athmani Hassan vs Paul Masinde Simidi & another [2019] eKLR, spelt out the doctrine of constitutional avoidance thus; “The article 41 rights are enacted in the Employment Act and the Labour Relations Act. The two Acts and the Rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1st Respondent filed a petition directly relying on the provisions of the Constitution to enforce contractual rights governed by the Employment Act, without seeking a declaration of invalidity of the Employment Act or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of the Constitution. We adopt and uphold the general principle in the persuasive authority in Barbara De Klerk [supra] that where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case [supra]….” 53. The reliefs sought by Petitioner under the petition, include a declaration that his termination was unlawful, compensation for unfair termination and salary arrears amongst others. These are all clearly remedies provided for under the Employment Act, 2007, and which should have, as correctly submitted by the Respondents, been sought under a normal claim under statute and not by way of a Constitutional petition. 54.In the final analysis, I find and hold that the petition does not disclose a cause of action anchored on the Constitution, and which renders the petition incompetent and is for striking out. 55.The petition is thus struck out with no orders on costs. Similarly in the case of Kung'u v Kenya Electricity Generating Company J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 23 | 33

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PLC [2024] KEELRC 1843 (KLR) this Honourable Court relied on the Supreme Court decision in Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR as well as the Court of Appeal decision in Gabriel Mutava & 2 others vs Managing Director, Kenya Ports Authority & another (2016) eKLR on the point. 49. In this case, and in line with the authorities referenced above, the Petitioner herein has run afoul of the doctrine of Constitutional avoidance as demonstrated by the following facts: a) In his Further Amended Petition, the Petitioner cites alleged breaches of Articles 47(1), 50 (1) and 27(1) of the Constitution of Kenya, 2010. b) The Petitioner, however, admits, at paragraph 161, 162, and 163 of his own Further Amended Petition, that the foregoing Constitutional Provisions have been given effect by legislation pursuant to Section 5, 41 and 45 of the Employment Act. Additionally, Sections 2 and 3 of the Fair Administrative Actions Act give effect to Article 47(1) of the Constitution of Kenya, 2010. c) The Petitioner also admits that the Respondent has a Human Resource Policy and Procedures Manual that is refenced in various paragraphs of the Further Amended Petition. d) The Petitioner also reference the Respondent’s Board of Trustees that whose appointment and functions are pursuant to the Wildlife Conservation and Management Act, the State Corporations Act, Mwongozo, the code of Governance of State Corporations and the Kenya Wildlife Service Human Resource and Procedure Manual. Specifically, the Board of Trustees draws its disciplinary power from the Respondent’s Human Resource Policy and Procedures Manual. e) The Petitioner further admits that the recovery of imprest is pursuant to the Public Finance Management (National Government) Regulations, 2015. 50. In view of the foregoing, it is evident that the present Petition violates the principle of Constitutional Avoidance as articulated in the authorities cited above. That the only appropriate recourse available to the court is to dismiss the Petition for want of Jurisdiction. This is in line with J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 24 | 33

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the holding of the Court of Appeal in the case of Eaton Towers Limited (Eaton Towers Limited v Kasing’a & 5 others (Civil Appeal 49 of 2016) [2022] KECA 645 (KLR) (28 April 2022) (judgment) (at paragraph 41-43 of the decision), where the Court stated as follows: Despite acknowledging that the petition might as well have been filed as an ordinary suit, as Counsel for the 1st respondent acknowledged, the learned Judge held; “If I am to fail to address the issues in this petition, the recourse of the petitioner will be to file a new suit, which I would still have to hear...I am guided by Article 159 of the Constitution to do justice without undue regard to procedural technicalities.” This cannot be good law, and it remains unacceptable for a court to consider that convenience is enough ground to confer jurisdiction. Inasmuch as the learned Judge, in his position at the ELC could hear both ordinary suits and constitutional petitions touching on land, he ought to have taken judicial notice of the fact that both avenues, though leading to his judicial ‘seat’, nonetheless confer separate jurisdictions with separate procedures that must strictly be adhered to. The notion that non-exhaustion of all prior forums does not strip the constitutional court of jurisdiction is erroneous and should not gain traction. It is patently clear that procedures that properly bring matters within the jurisdiction of a court go to the heart of a court’s ability to hear and determine those matters. They serve salutary practical and pragmatic purposes and cannot be reduced to mere technicalities curable by Article 159. With due respect to the learned Judge, he misapplied the letter and spirit of that provision of the Constitution. 51. That the Further Amended Petition also offends the doctrine of exhaustion in dispute resolution. This Honourable Court does not have the requisite jurisdiction to hear and determine this matter by dint of Section 74(1) of the Public Service Commission Act Cap. 185, which provides for the appeal process for public officers dissatisfied or affected by a decision made by an authorized officer or other authority in exercise of disciplinary control against the public officer. The Petitioner herein was subjected to a fair and lawful disciplinary process that culminated in his J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 25 | 33

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termination from the Respondent’s service. it is evident that the Petitioner is dissatisfied with both the process and outcome of the disciplinary hearing. There is a clearly provided process of appeal for public servants who are dissatisfied by the disciplinary process they are subjected to and the outcome. This appeal process is provided in the Public Service Commission Act. Section 74 (1) of the Public Service Commission Act Cap. 185 states, 74. Appeals (1) Any person who is dissatisfied or affected by a decision made by an authorized officer or other authority in exercise or purported exercise of disciplinary control against any public officer under this Act may appeal to the Commission. We submit that, by seeking orders in the nature of judicial review, the Petitioner seeks to subvert the elaborate appeal process for public servants and to avoid the lawfully provided administrative process for handling disciplinary matters within the public service. 52. The respondent further submitted that the Petitioner seeks to undermine the provisions of Section 9 (1), (2) and (3) of the Fair Administrative Action Act Cap. 7L, which states, -‘(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. (2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. (3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).’ 53. The respondent submitted that the appeal process for public servants as provided in Section 74 of the Public Service Commission Act Cap. 185 has not been exhausted, and therefore the Petitioner J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 26 | 33

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cannot seek orders of judicial review as provided in Section 9(2) of the Fair Administrative Action Act Cap. 7L. That the orders sought in the nature of Judicial Review orders are premature and offend the doctrine of exhaustion. It is only until all the mechanisms provided by law are exhausted that the Petitioner can seek orders of Judicial Review if dissatisfied with the outcome. The respondent relied in the decision in Kenya Union of Clinical Officers v Kajiado County Public Service Board & another (Cause E483 of 2023) [2023] KEELRC 3392 (KLR) (20 December 2023) (Ruling), where the Honourable Court in making a finding that it did not have jurisdiction to hear and determine a matter that had not been subjected to the Public Service Commission Act, Cap. 185 appeal process rendered itself thus, “On this issue, I gather support from the determination by the Court of Appeal in the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR thus; “ …where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime…In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance.” 21. I fully adopt and reiterate the position taken by the Learned Judges of the Court of Appeal and redirect the Claimant to first seek redress within the established dispute resolution mechanism in the Public Service Commission.” In Watila v Kenya Accountants and Secretaries National Examination Board (KASNEB) & another (Employment and Labour Relations Petition E186 of 2024) [2025] KEELRC 3351 (KLR) (27 November 2025) (Judgment) where Nduma Nderi, J as he then was stated, “The Petitioner herein did not await the internal process to conclude so as to avail himself of the internal appeal process and a further appeal to the Public Service Commission in line with section 74(1) of the Public Service Commission Act, 2017 which provides that: - “Any person who is dissatisfied or affected by an appeal’s decision made by an authorized officer or other authority exercise or purported exercise of J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 27 | 33

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disciplinary control against any public officer under this Act may appeal to the Commission.” It is the court’s considered finding that the petition was brought prematurely and the Petitioner avoided the doctrine of exhaustion of internal remedies and the appeal processes, available to all public officers.” It is therefore our humble submissions that the Further Amended Petition offends both the doctrine of constitutional avoidance and the doctrine of exhaustion and should be struck out. Decision on issue of jurisdiction 54. I find the facts of the chronology of events starting with the issue of the imprest, activity not undertaken, surrender demanded, and the petitioner asserting the imprest was not due for surrender as the activity had not been undertaken and subsequently disciplinary process took place are undisputed. The petitioner did exhaust the mechanism before the employer and was aggrieved, alleging procedural flaws, unfairness, and discrimination. There was no doubt the petitioner had been a public servant. His last promotion was vide letter dated 6 th October 2022 as a Senior Principal Land Management Officer, Job Grade 6. The Petitioner asserted that the Respondent’s disciplinary process was fundamentally tainted with illegality, procedural impropriety, irrationality, bias, denial of fair hearing, denial of access to information and violation of the rules of natural justice. That the impugned disciplinary process was conducted through an unlawfully constituted “Independent Disciplinary Panel” unknown to the applicable Human Resource framework and that the legally mandated Human Resource Management Advisory Committee (HRMAC) never heard the Petitioner before the decision terminating his employment was made. The Petitioner stated that the instant petition transcends an ordinary employer-employee dispute and raises substantial constitutional questions warranting the intervention of this Honourable Court. 55. The court found that the only constitutional issue outside fair hearing comprehensively covered under section 41 of the employment act was the claim of discrimination. In the amended petition J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 28 | 33

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the petitioner pleaded on the discrimination claim as follows- The Respondent was very aware of this provision on recovery of the money through the pay-slip, proceeded to deduct the Imprest from the Petitioner’s pay-slip during the entire interdiction period and discriminatively applied the ‘law’ to terminate the Petitioner’s services. claimant stated that the establishment of a disciplinary panel contrary to the Human Resource Policy and Procedures Manual and failure to summon the Petitioner for hearing by HRMAC discriminatively denied the Petitioner an opportunity to be heard as per the established disciplinary structures. That the Petitioner has been subjected to double jeopardy as the Imprest was deducted from June 2024 to January 2025 and a termination was purely a discriminative and punitive measure where the Director General was blatantly determined to terminate the petitioner’s services without due regard to the recommendations made by HRMAC. That the Petitioner and his team comprising six (6) officers, who were equally holding Daily Subsistence Allowances relating to the Kora National Park Boundary Survey, were not subjected to disciplinary proceedings or termination of employment. Instead, they were allowed to account for their respective Imprests within the time the Petitioner was away on short leave duly approved by the Respondent. That the Respondent therefore selectively applied the law and internal policies by denying the Petitioner the same opportunity accorded to other officers in similar circumstances, thereby discriminating against the Petitioner and denying him the full benefit and protection of the law contrary to Article 27 of the Constitution of Kenya, 2010.That the Respondent had already invoked Section 93(6) of the Public Finance Management Regulations, 2015, which provides for recovery of un-surrendered Imprests through salary deductions, and indeed proceeded to deduct the alleged Imprest from the Petitioner’s salary during the interdiction period. Termination of the Petitioner’s employment was therefore not contemplated under the said provision, as such termination would hinder full recovery of the Imprest. That despite being aware of the legal framework for recovery of the Imprest through salary deductions, the Respondent continued to deduct the same from the Petitioner’s payslip while simultaneously proceeding to J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 29 | 33

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terminate the Petitioner’s employment through an irregular disciplinary process conducted by an illegally constituted Disciplinary Panel and without summoning the Petitioner before HRMAC, thereby discriminatively denying the Petitioner an opportunity to be heard through the established disciplinary structures. That the Petitioner has been subjected to double punishment and discriminatory treatment, in that the alleged Imprest was already being recovered through deductions from the Petitioner’s salary from June 2024 to January 2025, yet the Respondent proceeded to terminate the Petitioner’s services. The said termination was therefore punitive, discriminatory and driven by a predetermined intention by the Director General to remove the Petitioner from employment without due regard to the recommendations of HRMAC. That by selectively applying disciplinary procedures, denying the Petitioner an opportunity to account for the Imprest while allowing other officers to do so, and imposing punitive measures not applied to others in similar circumstances, the Respondent violated the Petitioner’s right to equality and freedom from discrimination guaranteed under Article 27 of the Constitution. 56. The court found that the alleged discrimination was related to the issue of fair hearing and fair labour practices. All these are issues can be canvassed under the Employment Act. Section 74 of the Public Service Commission Act states as follows‘74. Appeals (1)Any person who is dissatisfied or affected by a decision made by an authorized officer or other authority in exercise or purported exercise of disciplinary control against any public officer under this Act may appeal to the Commission.(2)An appeal under subsection (1) shall be made in writing within ninety days from the date of the decision appealed against: Provided that the Commission may consider an appeal that was made out of time if, in the opinion of the Commission, the circumstances warrant such consideration.’ J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 30 | 33

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57. The Public Service Commission Act defines a public officer as follows: ‘"public officer" means any person other than a state officer who holds a public office;’ 58. The petitioner described the respondent as a state corporation established under section 6(1) of the Wildlife Conservation and Management Act 2013. Further a public body is defined under the Public Service Commission Act as follows- ‘"a public body" includes—(a)any corporation, council, board, committee or other body which has power to act under and for purposes of any written law relating to the undertakings of a public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law;(b)a corporation, the whole or a controlling majority of shares which are owned by a person or entity that is a public body by virtue of any of paragraph (a) of this definition;(c)statutory public bodies; or(d)any public body brought under the jurisdiction of the Commission by an Act of Parliament for a specified function to the extent of that function;’’ 59. The court then finds that the employees of the respondent are public officers and that included the petitioner. The petitioner ought to have first exhausted the available mechanism of appeal to the Public Service Commission under section 74 before coming to court. I did appreciate the decisions cited by the parties. Obviously, employment claims have a constitutional underpinning of fair hearing and fair administrative actions. However, the fairness in the disciplinary and termination of employment is comprehensively provided for under the Employment Act. In Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), the Court of Appeal held as follows:- J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 31 | 33

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‘There is no dispute that the germane dispute is the stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes.’ 60. The instant cause of action of disciplinary process invokes various statutes including the Employment Act. The court cannot be called to interpret and apply statutes in a constitutional petition. The right forum to do so would be under normal claims under the Employment Act. This was a case of constitutional avoidance as pronounced in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms:- “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”(cited in by the Court of Appeal in above Wajir case). 61. The respondent has called upon the court to strike out the petition. That is the ideal position. However the rules of the court (2024) Rule 56(5) provide as follows- ‘Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms-(c)a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.’ J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 32 | 33

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62. The instant petition was filed prior to exhaustion of the appeal under section 74 of the Public Service Commission Act. The Court invokes ELRC Rules, 2024, rule 56(5) and stays the petition pending the exhaustion of the process under section 74 of Public Service Commission Act. The petitioner ought to file appeal with the Commission for determination of his grievance. The Court will mention the matter after 60 days to receive the decision of the Commission and issue further directions. Mention on 25th November 2026. 63. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner-in-person Respondent: Ms Feksi J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 1 1 5 O F 2 0 2 5 P a g e 33 | 33

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