Jephrice Odera Ombima v County Government of Kisumu

VERSUS COUNTY GOVERNMENT OF KISUMU (Successor to the Municipal Kisumu).................RESPONDENT Council of JUDGMENT 1. The Petitioner instituted this suit through a Petition dated 26th June 2025, contending that she was employed by the defunct Municipal Council of Kisumu on 19th February 1990 as a Cleaner II and subsequently became an employee of the County Government of Kisumu following the transition to devolved government. She avers that on 3rd March 2005, she was suspended from duty on allegations of misconduct. She promptly appealed against the suspension on 7th March 2005. Despite the appeal she avers that her dismissal was confirmed by a letter dated 13th September 2006 following recommendations by the Public Service Commission. 2. According to her the disciplinary process leading to her dismissal was irregular and procedurally unfair. In particular she points to the correspondence from the Ministry of Local Government dated 30th March 2005 and 9th February 2007 Page 2 of 26

page 2 of 26

which acknowledged deficiencies in the handling of disciplinary cases by local authorities, including inadequate information and non-compliance with the applicable Public Service Commission Regulations. Notwithstanding this, the Petitioner contends that she continued in her pursuit for redress against her dismissal through follow up letters dated 14th February 2010, 13th April 2012 and 1st February 2013. Following this, she states that on 19th April 2010 she was retired in public interest and informed that her retirement benefits would be paid. Despite this undertaking, she avers that her benefits have never been paid. 3. The Petitioner avers that much later on 17th June 2014, the successor to the Municipal Council of Kisumu, the County Government of Kisumu reinstated her and she was subsequently deployed to the Environment Department with effect from 1st July 2014 remaining in service until her retirement on 1st July 2022. She avers that despite the reinstatement her dues for the period between 10th February 2005 and 17th June 2014 remained unpaid even though other employees facing the same predicament had been paid. In addition, she contends that after Page 3 of 26 reinstatement the

page 3 of 26

Respondent failed to effect or remit certain statutory deductions, including NHIF, NSSF and PAYE, failed to pay CBA-related salary increments and arrears, and failed to settle her terminal benefits upon retirement. 4. In view of the foregoing the Petitioner contends that the Respondent’s conduct violated her constitutional rights under Articles 27, 28, 41 and 47 of the Constitution. Specifically, she contends that the: paying of other reinstated employees’ dues to her exclusion contravened Article 27 of the Constitution; prolonged denial of her employment and retirement dues subjected her to financial hardship and undermined her dignity contrary to Article 28; dismissal and subsequent failure to compensate her amounted to a violation of her right to fair labour practices under Article 41; and the manner in which her disciplinary process was handled violated her right to fair administrative action under Article 47 of the Constitution. She further invokes Article 10 of the Constitution and the doctrine of legitimate expectation, contending that she expected to be paid after reinstatement like her colleagues. As for the Employment Act, she contends Page 4 of 26 that the failure to

page 4 of 26

compensate her dues between 2005 and 2014 constituted a continuing injury that continued even after reinstatement making the claim justiciable under section 90 of the Employment Act. Consequently, she seeks the following reliefs: (1) A declaration that the Respondent violated her rights under Articles 27, 28, 41 and 47 of the Constitution. (2) A declaration that the Respondent's failure to pay compensation for the period 2005 to 2014 was discriminatory and violated the Petitioner's legitimate expectation. (3) A declaration that the Respondent's failure to pay compensation for the period 2005 to 2014 was discriminatory and violated the Petitioner's legitimate expectation. An order compelling the Respondent to pay the Petitioner full back-pay for the period between 10th February 2005 and 17th June 2014, with interest. (4) General damages for breach of constitutional rights. Page 5 of 26

page 5 of 26

(5) A declaration that the Respondent is in breach of contract and the Employment Act for failing to pay terminal dues. (6) An order for payment of; Unpaid statutory deductions and remittances, СВА arrears and salary increments, Terminal benefits accrued upon retirement and Interest on all outstanding sums at court rates. (7) Costs of the petition 5. In response to the Petition, the Respondent admits the Petitioner’s employment history, suspension, dismissal, subsequent appeals and reinstatement. It nevertheless maintains that the dismissal occurred in 2005, before the establishment of the County Government, and therefore cannot be attributed to the Respondent. The Respondent avers that the dispute concerns an ordinary employment dispute governed by the Employment Act. It asserts that the Petitioner has only invoked the Constitution in order to circumvent the statutory limitation applicable to employment claims. On the claim arising from the time of dismissal Page 6 of 26

page 6 of 26

around the year 2006, the Respondent maintains that the Petitioner’s reinstatement on 17th June 2014 was prospective and did not confer retrospective salary or benefits for a period during which no services were rendered. As for NSSF dues and terminal benefits for the period between 1992 and 2004 the Respondent states that they were duly paid. 6. With respect to limitation the Respondent avers that the suit is untenable having been filed more than 19 years after the cause of action arose in the year 2005/2006. It asserts that reinstatement did not revive the claim neither did the alleged non-payment of due constitute a continuing injury. It argues that the Petitioner retired in July 2022 and did not institute proceedings within the period applicable for claiming a continuing injury. Moreover, the Respondent avers that the Petitioner’s conduct after reinstatement did not help her cause. It draws attention to the fact that between 2014 and her retirement in 2022, she neither lodged an internal grievance nor institute proceedings seeking the alleged back-pay. Instead, she continued receiving her salary and employment benefits throughout Page 7 of 26 that period. The

page 7 of 26

Respondent also points to the mandatory retirement notice dated 6th July 2021, and states that the Petitioner did not lodge any monetary claim before her retirement on 1st July 2022. It maintains that she had access to the County’s internal human-resource grievance mechanisms but did not invoke them. As for the constitutional violations, the Respondent denies any were violated reiterating that the claims pleaded as constitutional violations are, in substance, employment claims. 7. The Petition was canvassed by way of written submissions. Petitioner’s Submissions 8. In support of the Petition the Petitioner identifies the following issues for determination: (a) Whether barred the by Respondent's Petitioner's limitation, treatment and of constitutional if not, the claim whether Petitioner is the after reinstatement violated her rights under Articles 27, 41 and 47 of the Constitution and frustrated her legitimate expectation; Page 8 of 26

page 8 of 26

(b) Whether the Petitioner’s substantive employment claim arising from her service between 2014 and 2022 is barred by limitation; (c) Whether the Petitioner is entitled to claim back-pay, salary/CBA adjustments, statutory and pension remittances and terminal benefits; and (d) Whether the Petitioner failed to exhaust internal remedies as alleged by the Respondent. 9. On the first issue, the Petitioner submits that her constitutional claim is distinct from an ordinary employment claim subject to Section 90 of the Employment Act. Relying on Monica Wangu Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), she contends that there is no prescribed limitation period for claims founded on violation of constitutional rights, although delay may be considered in the circumstances of each case. She further relies on Safepak Limited v Henry Wambega & 11 others, Civil Appeal No. 8 of 2019 [2019] eKLR on the need to explain inordinate delay. The Petitioner asserts that Page 9 of 26

page 9 of 26

she persistently pursued administrative redress following her dismissal in 2005 and was ultimately reinstated in 2014. She contends that the alleged discriminatory continued after reinstatement because, treatment unlike other employees who had been similarly dismissed and reinstated, she was not compensated for the period she remained out of employment. She therefore submits that the grievance constituted a continuing injury. In support of that position, she relies on The German School Society & another v Ohany & another [2023] KECA 894 (KLR), where the Court of Appeal discussed the distinction between a continuing wrong and the continuing effects of a completed wrong and held that a continuing wrong may fall within the contemplation of Section 90 of the Employment Act. She also relies on Arisa v Kipkebe Limited [2024] KEELRC 1232 (KLR), where the Court applied the principles in German School Society (supra) to hold that a claim for overtime founded on a continuing injury was not time barred. On Article 27, the Petitioner submits that she was treated differently from employees who were similarly situated, in that others who were dismissed and subsequently reinstated Page 10 of 26

page 10 of 26

received compensation for the period they had remained out of employment, whereas she did not. She relies on East African Portland Cement Company Limited v Attorney General & another [2013] KEELRC 225 (KLR) for the proposition that persons similarly situated are entitled to similar treatment in the application of procedural and substantive law. On legitimate expectation, the Petitioner relies on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. She submits that legitimate expectation may arise from an express representation or established practice of a public authority where the expectation is reasonable, lawful and within the authority’s power to fulfil. She contends that, having been reinstated in circumstances where similarly situated employees were allegedly compensated, she reasonably expected to receive similar treatment. 10. On whether the substantive employment claim arising from 2014 to 2022 is time barred, the Petitioner asserts that this issue had already been determined by this Court in its ruling of 13th November 2025, in which the Court declined to Page 11 of 26

page 11 of 26

uphold the Respondent’s limitation objection and directed that the Petition proceed to hearing on its merits. She further notes that the Respondent’s subsequent application for stay pending appeal was declined on 17th February 2026. She therefore contends that, in the absence of an appellate order varying or setting aside the earlier ruling, the parties remain bound by that determination. The Petitioner further submits that her substantive employment grievances arose during her service from 2014 until her retirement on 1st July 2022 and concern salary adjustments, CBA increments, statutory deductions, pension contributions and retirement benefits. She therefore maintains that the claim, having been filed before expiry of three years from cessation of employment, is not time-barred. 11. As concerns whether the Petitioner is entitled to back- pay, salary/CBA adjustments statutory and pension remittances and terminal benefits, the Petitioner submits that despite her reinstatement and continued service until retirement, the Respondent failed to fully account for and settle all her employment entitlements. She identifies the Page 12 of 26

page 12 of 26

outstanding claims as including back-pay for the period between 2005 and 2014, salary and CBA adjustments, statutory and pension remittances and retirement benefits. The Petitioner acknowledges that the Respondent has produced records showing that her terminal benefits were processed and paid through NSSF and LAPTRUST. She nevertheless maintains that this did not resolve her principal grievance concerning the period between her dismissal and reinstatement. She therefore urges the Court to award the salary and attendant benefits due for that period. 12. On whether she failed to exhaust internal remedies, the Petitioner disputes that contention. following She her dismissal she administrative avenues, including submits persistently that pursued appeals and correspondence with the Ministry of Local Government and the Public Service Commission, culminating in her reinstatement in 2014. She further contends that, after reinstatement, her grievance was no longer about a disciplinary or employment decision requiring administrative review, but concerned payment of accrued employment and retirement dues. Having retired in 2022, she maintains that Page 13 of 26

page 13 of 26

the dispute had become one of enforcement of accrued employment rights and was therefore properly before the Court. She accordingly urges the Court to allow the Petition with costs. Respondent’s Submissions 13. On its part the Respondent identifies the following issues for determination: (a) Whether, in light of the Ruling of 13th November 2025, the Petition is in substance an employment claim governed by the Employment Act, 2007, and the effect of that characterisation on the applicable limitation regime; (b) Whether the Petitioner's claims, in each of their limbs, are time-barred under Section 89 of the Employment Act, 2007; (c) Whether the doctrine of continuing injury saves any part of the claim, and in particular the claim for the period between 2005 to 2014; Page 14 of 26

page 14 of 26

(d) Whether the Petitioner has proved any violation of Articles 27, 28, 41 and 47 of the Constitution, or any legitimate expectation; (e) Whether the Petitioner exhausted the available internal and statutory dispute-resolution mechanisms, and whether the claim is in any event defeated by laches; (f) Whether the Petitioner has pleaded and proved any quantifiable entitlement; and (g) What orders the Court ought to make, including as to costs. 14. On the Petition being in substance an employment claim, the Respondent maintains that the character of the dispute had already been determined by this court in its ruling dated 13th November 2025, in which it was found that the alleged violations and reliefs concerned employment matters and that no constitutional issue had been isolated. It contends that the Petitioner cannot avoid the statutory limitation period by clothing an ordinary employment claim as a Page 15 of 26

page 15 of 26

constitutional petition. It relies on Luka Chebii Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR), Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR, and Summaya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR for the proposition that where the reliefs sought are employment remedies, a litigant cannot circumvent the statutory framework by invoking the Constitution. It further relies on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR for the argument that a court cannot determine a constitutional issue where the matter can properly be decided on another basis, and that a claim capable of resolution on an ordinary legal footing is not properly laid as a constitutional issue and East African Portland Cement Company Ltd v Attorney General & another [2013] eKLR where the court warned against constitutionalising ordinary employment disputes. 15. On whether the claims are time barred under the Employment Act, the Respondent submits they are not. As Page 16 of 26

page 16 of 26

regards salary and benefits for the period 10th February 2005 to 17th June 2014, the Respondent submits that the cause of action arose upon the dismissal in 2005, confirmed in 2006, or at the latest upon the alleged failure to pay following reinstatement in June 2014. It contends that the three-year limitation period had therefore expired long before the Petition was filed in June 2025. It relies on Attorney General & another v Andrew Maina Githinji & another [2016] eKLR and Iga v Makerere University [1972] EA 65 on the mandatory nature and effect of statutory limitation. It contends that the terminal-dues claim, having accrued upon retirement on 1st July 2022, is not time-barred but is not a live dispute because the Petitioner herself acknowledges that the Respondent produced records showing that her terminal dues were processed through NSSF and LAPTRUST. The Respondent further disputes the Petitioner’s interpretation of the Court’s ruling of 13th November 2025, contending that the Court did not determine the limitation issue in her favour but merely declined to strike out the Petition at the preliminary objection stage because the evidence then was inconclusive. Page 17 of 26

page 17 of 26

It submits that the subsequent production of the Mandatory Retirement Notice dated 6th July 2021 and pension records confirming retirement on 1st July 2022 now enables the Court to determine the limitation issue on the evidence. 16. On whether the doctrine of continuing injury saves the 2005 to 2014 claim, the Respondent submits that it does not. It asserts that the dismissal in 2005 and the alleged failure to pay upon reinstatement in 2014 were completed acts. It asserts that unlike in The German School Society & another v Ohany & another [2023] KECA 894 (KLR), the Petitioner rendered no service and was not in the Respondent’s employment between 2005 and 2014. In any event, even if the non-payment amounted to a continuing injury, the twelve-month period would have expired either in June 2015 upon reinstatement or, at the latest, in July 2023 upon retirement. 17. On whether the Petitioner proved violation of Articles 27, 28, 41 and 47 of the Constitution or any legitimate expectation, the Respondent submits to the contrary. On Page 18 of 26

page 18 of 26

Article 27, the Respondent submits that the allegation of unequal treatment is unsupported because there is no evidence that the employees she was allegedly reinstated with namely, Rose Oliech, Elizabeth Akinyi and Lydia Nasimiyu, received compensation for the period they were out of employment. It contends that the evidence only establishes their reinstatement but does not demonstrate that they were reinstated on the same terms or were similarly situated. It relies on East African Portland Cement Company Ltd v Attorney General & another [2013] eKLR on equal treatment of similarly situated persons and submits that discrimination in employment is also specifically addressed under section 5 of the Employment Act. On Article 28, the Respondent submits that no conduct amounting to a violation of the Petitioner’s inherent dignity has been established. On Article 41, it contends that the Petitioner rendered no service between 2005 and 2014 and that remuneration does not accrue for a period of non-service absent a contractual or statutory entitlement or a specific order. Regarding Article 47, the Respondent submits that the Petitioner has identified no Page 19 of 26

page 19 of 26

unlawful, unreasonable or procedurally unfair administrative action. It contends that reinstatement was beneficial and was accepted without reservation and that the Petitioner’s terminal dues were processed in accordance with the applicable regulations. On legitimate expectation, the Respondent relies on Communications Commission of Kenya v Royal Media Services Ltd & 5 others (supra), submitting that such expectation must arise from a clear, unambiguous and unqualified representation or established practice within the authority’s lawful power. It contends that there was no representation that the Petitioner would receive back-pay for 2005 to 2014, the reinstatement letter was prospective, and the alleged practice of compensating reinstated employees for gap periods was not proved. 18. On the exhaustion doctrine and whether the claim is defeated by laches, the Respondent submits that although the Petitioner pursued appeals against her dismissal before 2014, she did not pursue the alleged arrears during the eight years between reinstatement and retirement. It contends that she lodged no grievance or complaint with the Page 20 of 26

page 20 of 26

Respondent, County Public Service Board or Public Service Commission regarding the alleged 2005 to 2014 dues. It relies on Speaker of the National Assembly v Njenga Karume [1992] eKLR and section 77 of the County Governments Act, 2012, submitting that a person aggrieved by a County Public Service Board decision relating to employment, remuneration, pension, gratuity or terminal benefits has a statutory right of appeal to the Public Service Commission, ordinarily within ninety days. The Respondent contends that the Petitioner did not invoke that mechanism and instead approached the Court after the statutory periods had elapsed. The Respondent further submits that the claim is defeated by laches. It contends that the Petitioner accepted her salary and employment benefits for eight years without raising the alleged arrears, received the Mandatory Retirement Notice of 6th July 2021 without making the claim, and only issued a demand letter on 13th March 2025, almost three years after retirement. 19. On whether the Petitioner proved any quantifiable entitlement, the Respondent submits that the Petitioner Page 21 of 26

page 21 of 26

provided no computation, salary schedule, CBA schedule, or evidence identifying particular unpaid increments or statutory remittances. It relies on German School Society & another v Ohany & another (supra) for the proposition that back-pay must be specifically pleaded and proved and cannot be founded on speculation or conjecture. It further submits that the documentary evidence produced by the Respondent, including the LAPTRUST contribution statement, withdrawal-benefit statement, computation demonstrates that and NSSF member pension and statutory remittances were made and that terminal benefits were processed. It contends that the Petitioner’s own acknowledgment that the Respondent produced records showing payment of her terminal dues further defeats those claims. In conclusion the Respondent urges the court to dismiss the Petition with costs. Disposition 20. Before I give the verdict here, it is noted that in this case, like in many that I have seen this week, the citations of cases Page 22 of 26

page 22 of 26

given does not accord with the reporting format of cases in Kenya. The National Council for Law Reporting (Kenya Law) the official source of Law Reports and consolidated Laws of Kenya has tirelessly worked to process judgments for law reporting online on the website and has given formats for citation. One can use the full citation as will be evident in a case the Court cites below, or the partial citation that some Advocates have adopted, where the date and nature of the determination are not included. In the format the Court has used in this case is the full citation with the date and the nature of the determination in the case which is a Ruling. It is imperative that lawyers appearing before our courts cite cases correctly as it clears any doubts as to what principles were being highlighted or cited. When it is argued that a certain principle was applicable and the citation gives a possible 10 different cases with similar names and parties, it then becomes more important to cite cases with particularity. 21. Now back to the case at hand, the Petitioner has moved the Court more than 19 years after the cause of action arose in the year 2005/2006. The Petitioner asserts here that her Page 23 of 26

page 23 of 26

rights were abridged by the predecessor to the County Government of Kisumu, namely, the Municipal Council of Kisumu. The County Government of Kisumu was not in existence in 2005/2006 when the cause of action arose. Given the law in place, the Petitioner had 6 years within which to present her claim. She did not present any suit between the dismissal in 2006 and the reinstatement in 2014. Upon reinstatement, she had 3 years to file suit for the alleged discrimination in terms of the then section 90 of the Employment Act which limited claims on employment matters to 3 years save for those for continuing injury whose time limit was 1 year. In this case, there was no suit filed in 2017 or within 1 year of the accrual of cause of action in respect to the continuing injury. Instead, a suit was filed in 2025 a whopping 8 years after the accrual of the cause of action. In the case of Attorney General & another v Githinji & another (Civil Appeal 21 of 2015) [2016] KECA 817 (KLR) (3 February 2016) (Judgment) the Court of Appeal per Waki JA held Time limits in the former Act were subject to the Limitation of Actions Act which in some cases could be as Page 24 of 26

page 24 of 26

long as 12 years and amenable to extension. By expressly inserting section 90, the intention of Parliament , in my view, at least in part, must have been to protect both the employer and the employee from irredeemable prejudice if they have to meet claims and counter claims made long after the cause of action had arisen when memories have faded, documents lost, witnesses dead or untraceable. It is understandable therefore when the Section peremptorily limits actions by the use of the word ‘shall’. 18. Having found that the cause of action arose on 2 nd February 2010 and that the claim was filed on 16 th June 2014, it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1 st February 2013, and I so hold. 22. That determination is one this Court has consistently applied as there is now no extension possible in labour matters. Once limitation has set in there is no wriggle room. Even judicial craft and lawyerly innovation cannot be a cure Page 25 of 26

page 25 of 26

for limitation that is cast in statute. The law as it stood then, and even now, had time limits prescribed. The Petitioner did not come to Court within any of the periods she could have moved this Court or the predecessor of this Court – the Industrial Court then sitting as a tribunal. There is nothing the Petitioner can do to breathe life to her dead suit. The issue of limitation upon a careful evaluation of the evidence before me is one that can only result in one outcome – dismissal of the Petition. I find and hold the Petition being time barred and the claims being stale and to which limitation applies, is for dismissal with costs to Respondent. It is so ordered. Dated and delivered at Kisumu this 30th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 26 of 26 the

page 26 of 26