County Government Workers Union (K), Vihiga Branch v County Public Service Board, Vihiga & 2 Others

AND IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT, SECTION 12 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015, SECTION 12 BETWEEN COUNTY GOVERNMENT WORKERS UNION (K), VIHIGA BRANCH................................APPLICANT VERSUS COUNTY PUBLIC SERVICE BOARD, VIHIGA ...................................................................1ST RESPONDENT COUNTY SECRETARY, VIHIGA COUNTY…….........................................................2ND RESPONDENT COUNTY GOVERNMENT OF VIHIGA ...................................................................3RD RESPONDENT (BEFORE HON. JUSTICE DAVID NDERITU) RULING I. INTRODUCTION 1. In a notice of motion (the application) dated 18th March 2026, the Applicant is seeking for the following orders – KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 2 | PAGE

page 2 of 22

a) Spent. b) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction restraining the Respondents, their agents or servants from proceeding with the purported disciplinary proceedings against the affected County Officers. c) THAT pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an injunction restraining the Respondents from re-opening or continuing with disciplinary proceedings arising from matters already determined by the Public Service Commission of Kenya in Appeal No. 200 of 2025. d) THAT this Honourable Court do order the Respondents to fully implement the decision of the Public Service Commission of Kenya, including: reinstatement of the affected officers payment of all withheld salaries. e) THAT the Respondents be restrained from subjecting the affected officers to any further disciplinary process in relation to the same allegations already determined. f) THAT the costs of this Application be provided for. 2. The application is expressed to be founded on Articles 10, 19, 22, 23, 41 & 47 of the Constitution of Kenya, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 3 | PAGE

page 3 of 22

Procedure Rules, 2013, Section 2 & 12 of the Fair Administrative Actions Act; Section 72(2) of the County Governments Act, and Section 2 of the Employment Act. It is based on the grounds on the face of it. 3. The application is supported with the affidavit sworn by Victor Igara Midalimu on 18th March 2026 with several annexures thereto. 4. The Respondents entered appearance through the Office of the County Attorney and filed a replying affidavit sworn by Peter Inonda, the secretary/CEO to the 1st Respondent, on 19th March 2026, with several annexures thereto. 5. The Applicant filed a further affidavit sworn by Victor Igara Midalimu on 24th April 2026. 6. On 19th March 2026 when the matter came up for directions, the court directed that the application be canvassed by way of written submissions. 7. Mr. Igara, the representative of the Applicant, filed three sets of submissions on – the merits of the application, the Respondent’s preliminary objection, and on the issue of jurisdiction – all dated 24th April 2026. Mr Musiega for the Respondents filed written submissions dated 27th April 2026. II. THE APPLICANT’S CASE & EVIDENCE 8. In summary, the Applicant is a trade union representing workers KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 4 | PAGE

page 4 of 22

employed by the Respondents. The Applicant is seeking for injunctive orders restraining the Respondents from proceeding with or reopening disciplinary proceedings against its affected members. The Applicant contended that the matters subject of the disciplinary hearing had previously been dealt with by the Public Service Commission (the Commission) in Appeal No. 200 of 2025, which resulted in orders for reinstatement and payment of withheld salaries. The Applicant, therefore, seeks for enforcement of that decision and an order restraining the Respondents from subjecting the affected employees to further disciplinary proceedings on the same or similar grounds. 9. The Applicant's principal complaint was that the 1st Respondent was not legally constituted when the impugned disciplinary process was undertaken. It was stated that the terms of service of four Board members expired on 21st November 2025 and that their replacement had not been completed. Consequently, the Applicant argued that the Board lacked the statutory quorum required under Section 58 of the County Governments Act and was incapable of lawfully exercising disciplinary authority over the affected employees. 10.The Applicant further challenged the delegation of disciplinary powers relied upon by the Respondents. It was contended that the instrument of delegation was made when the Board was not properly constituted and without evidence of a valid quorum or resolution. It was maintained that the functions exercised under Section 59 of the KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 5 | PAGE

page 5 of 22

County Governments Act, particularly those involving disciplinary proceedings and dismissal, could not be lawfully exercised by the persons constituting the impugned disciplinary panel. The Applicant specifically objected to the participation of the County Secretary, Human Resource officers, County Solicitor and legal advisers, whom were not vested with disciplinary jurisdiction under the Act. 11.The Applicant further contended that the Respondents reopened matters which had already been determined by the Public Service Commission. According to the Applicant, after the Commission ordered reinstatement, the affected employees were allowed to resume duty but were allegedly not restored to the payroll and continued working without payment of salaries. The Respondents subsequently issued summons and commenced fresh proceedings over the same matters. The Applicant characterised this as an attempt to retry the officers, contrary to the decision of the Commission. 12.The Applicant challenged the Respondents’ decision to downgrade the affected officers and reduce their salaries upon reinstatement. It was maintained that reinstatement to the former positions necessarily restored the officers to the terms and conditions attached to those positions. It was argued that downgrading the affected employees before completion of any fresh disciplinary process amounted to unlawful alteration of their terms of employment prejudged the disciplinary process, and violated their constitutional rights. KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 6 | PAGE

page 6 of 22

13.In opposition to the Preliminary Objection (PO) by the Respondent, the Applicant maintained that the Petition raises constitutional questions, including violations of Articles 10, 41, 47 and 236 of the Constitution, and is, therefore, not merely about an ordinary issue of disciplinary dispute. 14.The Applicant disputed the contention that the appeal mechanism before the Commission deprived this Court jurisdiction over the subject matter. It argued that the statutory mechanism does not oust this Court’s constitutional and statutory jurisdiction, particularly where the complaint concerned the legality and constitutionality of the manner in which the County Public Service Board exercised its powers. 15.The Applicant further argued that the doctrine of exhaustion is not absolute and that an exception applied here because the dispute concerned the legality of the delegation instrument of delegation and the composition of the Board. It was contended that the Commission dealt with the earlier disciplinary proceedings in Appeal No. 200 of 2025 and that requiring the affected employees to pursue another appeal would be ineffective and or futile. 16.The Applicant identified the validity of the instrument of delegation dated 18th November 2025 as a central issue. It was argued that this is a question of statutory and constitutional interpretation falling within the jurisdiction of the Court. It was further submitted that the PO is KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 7 | PAGE

page 7 of 22

not properly before the court because the determination of the issue of exhaustion would require consideration of the facts, pleadings and the nature of the reliefs sought by the court. 17.The Applicant denied the allegation that the Petition was filed without the knowledge or authority of the affected employees. It was maintained that the Applicant is entitled to represent its members and protect their collective rights and interests in employment and that individual written consent from every affected employees was not necessary before institution of the proceedings. 18.The Applicant rejected the allegation that Victor Igara Midalimu instituted the proceedings for personal gain, maintaining that such allegations fail to answer the constitutional and legal questions raised concerning the legality of the disciplinary process. III. THE RESPONDENT’S CASE & EVIDENCE 19.In their replying affidavit sworn by Peter Inonda, the Respondents stated that the terms of four members of the 1st Respondent (the Board) expired in 2025 and that the process of recruiting their replacements was ongoing. 20.It was deponed that at the time the said members left office, the Board was handling disciplinary cases arising from alleged payroll fraud involving more than 100 employees that had resulted the of over Kshs100 million. Some of the employees involved had been KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 8 | PAGE

page 8 of 22

dismissed, while disciplinary proceedings against others were still pending. 21.According to the Respondents, anticipating delays in constituting the Board and the need to conclude the pending disciplinary matters, the fully constituted Board had developed an instrument of delegation authorising the Secretary of the Board, one Board member, Sylvia Sayo Kedogo, and the County Secretary, Vincent Mwamiri Chanzu, to exercise specified functions of the Board on interim basis. It is deponed that the Respondents relied on Section 86 of the County Governments Act, which permits the County Public Service Board to delegate its functions in writing to specified persons. 22.It is further deponed that in issuing the impugned show-cause letters to the affected employees the Respondents were acting pursuant to the delegated authority and were lawfully exercising the Board’s disciplinary powers under Section 59(1)(c) of the County Governments Act. 23.It was further stated that some employees who had been dismissed appealed to the Commission. The Commission found and held that the affected employees had not been served with show-cause letters and had consequently been denied fair administrative action. The Commission directed the Board to investigate the salary overpayments, commence recovery proceedings following due process by issuing the affected employees with show-cause notices KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 9 | PAGE

page 9 of 22

and an opportunity for them to make presentations in their defence. 24.It is the Respondents’ position that the decision by the Commission required the disciplinary process to recommence from the stage of issuing show-cause notices and that this necessitated reinstatement of the affected employees. The Respondents consequently reinstated all the affected employees whose dismissals had been affected by the procedural defects and thereafter commenced fresh disciplinary proceedings against them. 25.The Respondents denied the Applicant’s contention that the Commission ordered reinstatement with all benefits. They maintain that the decision by the Commission did not contain such a direction. They further contended that the reinstatement itself was undertaken pursuant to the same instrument relied upon in the disciplinary process and that the Applicant cannot consistently challenge the delegation in relation to disciplinary proceedings while accepting the validity of the same instrument in relation to reinstatement. 26.The Respondents explained that the disciplinary proceedings concerned irregular appointments and promotions which had placed some employees in higher job groups and enabled them to receive salaries that were double or triple the lawful limits. According to the Respondents, it was therefore necessary to correct and rectify the irregularities in the payroll by all means, including by downgrading the affected employees to their rightful positions before restoring KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 10 | PAGE

page 10 of 22

them to the payroll. The Respondents contended that reinstatement did not require the Respondents to continue paying irregular and inflated salaries thereby perpetuating loss and misuse of public funds. 27.The deponent stated that the employees who attended the disciplinary hearings agreed to be downgraded to their rightful positions and that the appropriate action had been taken. The Respondents maintained that all the employees shall ultimately return to the payroll but at their lawful salary scales, while recovery of irregular payments shall be continued and completed. 28.On locus and representation, the Respondents alleged that the Petition may have been filed without the prior knowledge or consent of the affected employees. They specifically state that Victor Igara Midalimu, whom they describe as the real Applicant, benefited from irregular payments, had been served with a demand notice, and failed to attend the disciplinary hearing or make the required disclosure. The Respondents contended that the Petition was instituted for personal gain rather than in the interests of all the affected employees. 29.The Respondents further relied on the written responses allegedly given by the affected officers when the payroll irregularities were brought to their attention. They contended that the affected employees admitted to the erroneous appointments and promotions and agreed to recovery of the irregular payments. On that basis, the KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 11 | PAGE

page 11 of 22

Respondents maintained that the employer was entitled to correct the irregularities under Section 75 of the County Governments Act, including cancellation of the erroneous letters of appointment or promotion. 30.The Respondents raised a jurisdictional objection contending that disputes arising from the exercise of disciplinary powers by the Board are subject to an appellate mechanism to the Commission, pursuant to Article 234 of the Constitution, Section 77 of the County Governments Act and Sections 85 & 86 of the Public Service Commission Act. 31.Their Respondent posited is that the Applicant did not exhaust the above statutory dispute-resolution mechanism before approaching the Court. Consequently, the Respondents contended that this Court lacked the jurisdiction to entertain the Petition and that the proceedings herein are barred by Section 87(2) of the Public Service Commission Act. 32.In regard to the presence of the Director of Human Resource Management and the County Solicitor during the disciplinary proceedings, the Respondents clarified that the County Solicitor did not attend the hearings. The Director of Human Resource Management was invited to attend in case the affected employees wished to cross-examine him, but none of the employees made the request to do so. The Respondents further stated that the Applicants KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 12 | PAGE

page 12 of 22

did not object to the above attendance during the proceedings. 33.The Respondents further contended that Sections 8 & 9 of the Office of the County Attorney Act empower the County Attorney to attend such proceedings personally or through duly authorised representatives. 34.The Respondents maintained that there is nothing capable of being stayed, since the impugned actions had already been undertaken and the affected officers reinstated and subjected to fresh disciplinary processes. They further maintained that the Petition is premature for failure to exhaust the statutory appellate mechanism and that the Court thus lacked jurisdiction. They urged the Court to dismiss the Petition and the application and award with costs. IV. SUBMISSIONS 35.The Applicant through its representative addressed the following issues in the written submissions – Whether the delegation tool dated 18th November 2023 is valid instrument under section 86 of the County Governments Act; Whether disciplinary powers of the County public service board, being quasi -judicial, are capable of delegation under Section 86; Whether the downgrading of reinstated officers before conclusion of fresh disciplinary proceedings violates their constitutional rights; Whether the participation of the County secretary, an executive officer, in quasi-judicial disciplinary KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 13 | PAGE

page 13 of 22

proceedings violates the constitutional principle of separation of functions and fair administrative action; and What relief is appropriate. 36.It was submitted that this Court has the requisite jurisdiction to hear and determine the Petition and that the PO by the Respondent based on exhaustion of the appeal to the Commission mechanism is misconceived. 37.It is contended that the dispute raises constitutional and employment questions, particularly the pleaded violations of Articles 47, 41, 236 & 10 of the Constitution. It was argued that this Court's (ELRC) jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act extends to constitutional violations arising in employment and labour relations even in public service and the same cannot be ousted by an appeal mechanism provided for in a statute. 38.On the issue of exhaustion of the out of court mechanism and remedies, it was argued that Section 87(2) of the Public Service Commission Act does not apply in this petition because the same is not challenging a decision of the Commission but rather the legality and constitutionality of the disciplinary proceedings undertaken by the Respondents through a disputed instrument. It was maintained that the Commission cannot determine the validity of the instrument, grant the declaratory and injunctive reliefs sought, or effectively KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 14 | PAGE

page 14 of 22

address the alleged ongoing violation of the rights of the affected employees. It was submitted that the Applicant relied on the exceptions to the doctrine of exhaustion. It was submitted that the alternative remedy was inadequate in the circumstances and that demanding that individual employees pursue separate appeals would be impracticable and disproportionate. 39.It was submitted that four members of the 1st Respondent had exited or were due to exit shortly thereafter, leaving the Board without the statutory composition and quorum as required under Section 58 of the County Governments Act. It was questioned as to whether the outgoing Board could validly pass the delegation resolution and whether the instrument could confer disciplinary authority after the Board ceased to be properly constituted and lacked quorum. 40.It was argued further that the disciplinary functions of the Board under Section 59(1)(c) of the County Governments Act, including issuing show-cause letters, conducting disciplinary hearings, and taking action leading to dismissal, are quasi-judicial functions and could not be lawfully exercised through the impugned delegation. The Applicant questioned the participation of the County Secretary and other executive officers, contending that the Board is constitutionally independent of the County Executive and that involving officers from the executive compromised the independence and impartiality in the disciplinary process. KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 15 | PAGE

page 15 of 22

41.The Applicant relied on the decision of the Commission in County Appeal No. 200 of 2025, where it was found that the disciplinary process was procedurally unfair and directed reinstatement of the affected employees and that commencement of any fresh disciplinary process was to be properly conducted upon issuance of fresh by show-cause notices. It was further argued that instead of the Respondents complying with that decision, they purported to reopen the same matters using the same disputed instrument of delegation. 42.On the issue of downgrading and reduction of salaries of the reinstated employees, it was argued that reinstatement to their former positions necessarily restored them to the corresponding terms and conditions of service. it was submitted that downgrading them before completion of fresh disciplinary process prejudged the outcome of that process, altered their terms of service, and violated Article 236 of the Constitution, as well as their right to fair administrative action under Article 47 of the Constitution. 43.The court was therefore urged to declare the instrument of delegation unlawful and void the decision nullify the disciplinary proceedings and the show-cause letters and the decision downgrading the salaries as undertaken pursuant to the instrument, issue an order of certiorari in respect of the impugned proceedings; restrain and injunct the Respondents from continuing the disciplinary process; restore the affected employees to their former positions and salaries; and, award KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 16 | PAGE

page 16 of 22

costs to the Applicant. 44.On the other hand, the Counsel for the Respondents submitted on the following three issues – Whether the application is competent; Whether the disciplinary process was lawful; and Whether there is any act or process to stay/injunct. 45.On the first issue, it was submitted that the Applicant failed to electronically file the substantive petition on the Court Tracking System (CTS), contrary to Rule 24(1) of the Employment and Labour Relations Court (Procedure) Rules (ELRC Rules). It was further submitted that since the application sought interim orders pending the hearing and determination of the petition, the same ought to have been anchored on a properly filed petition. Counsel cited the decisions in Chacha & Another v Orbit Chemicals Industries Limited & another [2024] KEELC 3278 (KLR) and Dishon Ochieng v SDA Church [2012] eKLR in support of the proposition that failure to file the substantive pleading renders an interlocutory application fatally defective. 46.On the second issue, Counsel maintained that the impugned disciplinary process was undertaken lawfully pursuant to powers delegated to the Respondents by the County Public Service Board. It was submitted that the Respondents relied on the said instrument of delegation annexed to the replying affidavit. It was submitted that such delegation was permissible under Section 86 of the County KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 17 | PAGE

page 17 of 22

Governments Act. It was further contended that the disciplinary proceedings had already taken place and concluded as at the time the Applicant filed the proceedings in court, and, therefore, there was no pending process capable of being stayed or restrained. It was further submitted that the application has thus been overtaken by events and the court is urged to dismiss the same with costs. V. ISSUES FOR DETERMINATION 47.The court has carefully and dutifully gone through the application, the supporting affidavit, the annexures thereto, the further affidavit and grounds of opposition by the Applicant, and the replying affidavit by the Respondents, contents whereof were summarized in an earlier part of this ruling. The Court has also read and summarised the submissions filed for or by both parties in the foregoing paragraphs of this ruling. 48.In the considered view of the Court, the following issues commend themselves to the court for determination – a) Whether the application as filed is competent? b) Whether the court should issue the conservatory orders as sought? c) What are the appropriate orders for the court to make at this stage? d) Costs. KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 18 | PAGE

page 18 of 22

VI. COMPETENCY OF THE APPLICATION 49.As at the time of writing this ruling, there is no Petition filed on the filing system accompanying the application. A hard copy of the petition dated 18th March 2026 was placed in the court file, with no evidence of when the same was filed and or received. Since the online court trucking system (CTS) is the primary filing system, before hard copies of documents and pleadings are supplied to the court, it is safe and lawful for the court to find and hold that no petition was filed in accordance with the law on which to found an application. 50.Rule 45 (5) of the Employment and Labour Relations Court (Procedure) Rules, 2024, provides that – In a suit where an injunction is sought, an applicant may at any time in the suit, apply to the Court for an interim or temporary injunction to restrain the respondent from committing a breach of contract or an injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. 51.Rule 2 of the ELRC Rules defines a suit to mean – ‘a claim, petition, application for judicial review, appeal or any proceedings before the Court for determination’. 52.A notice of motion is not recognised as a suit or pleading under Rule 2 of the ELRC Rules, which recognises a pleading as – includes the statements in writing of the claim or demand of an applicant, KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 19 | PAGE

page 19 of 22

petition, judicial review application, and the defence by a respondent thereto, the reply of an applicant to any defence or a counterclaim of a respondent. 53.Prayers 2, 3, 5, & 6 in application seek interlocutory orders and temporary injunctions which must of essence be predicated on a suit filed by the party seeking the injunction as defined and provided in the law cited above. 54.The law cited above provides that an application for a temporary injunction may only be made by a party who has instituted or commenced substantive proceedings. Therefore, the Applicant ought to have first filed a substantive suit or petition seeking for substantive orders against the Respondents for it to sustain an interim or interlocutory application. The application for temporary relief could then be made pending the determination of the substantive petition. 55.A temporary or permanent injunction should be anchored on a properly filed substantive claim, such as a petition seeking permanent injunctive or declaratory reliefs. In the absence of such a substantive petition on record, the prayers for temporary and permanent injunctions and all the others are unsupported and made in a vacuum. 56.Prayer 4 of the application seeks for the court to direct the Respondents to implement the decision of the Commission by reinstating the salaries of the affected employees. The applicant annexed the show-cause letters of Lenah Nyakoa, Rebecca KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 20 | PAGE

page 20 of 22

Chepkemboi Sabul, Florence Ingakara, and Edith Engege Kinyanzwa, all dated 27th January 2026, in which the said employees are alleged to have received what is described as undeserved salary payments and the proposed recovery of the excess salary payments from the said employees. 57.The Respondents in their replying affidavit indicated that the employees who had been wrongfully and unlawfully placed on higher salary scales were restored to their rightful job groups, and the said employees acceded to that action. The Respondents asserted that Victor Mdalimu was also a beneficiary of placement on a wrong salary scale and overpayment of salaries, but he failed to appear for disciplinary hearing, however, his salary was likewise adjusted to the right scale. 58.The court notes that this prayer cannot issue in the interim in light of the fact that the salaries of the affected employees were reinstated on the adjusted to the rightful and lawful scales. The court notes that the issue as to whether the reinstatement of salaries on the scale done by the Respondents and the challenged composition of the disciplinary panel is not an issue that can be determined through an interlocutory application without hearing the parties in a substantive petition. Moreover, there is no substantive petition on record on which to premise the hearing and determination of the said prayer. KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 21 | PAGE

page 21 of 22

59.Based on the foregoing, the court holds and finds that the omission/failure by the Applicant to properly file a petition, on which to anchor the application rendered the application fatally defective and therefore a non-starter. 60.For all the foregoing reasons, the application dated 18th March 2026 is hereby dismissed. V. ORDERS 61. The court makes the following orders – a) The application by the Applicant dated 18th March 2026 is incompetent and is hereby dismissed. b) Costs to the Respondents. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 1ST DAY OF OCTOBER 2026. …………………… DAVID NDERITU JUDGE KAKAMEGA ELRC CONST. PET NO. E007 OF 2026 RULING 22 | PAGE

page 22 of 22