Emmanuel Maitha David & 7 others v The Governor, County Government of Kilifi & 2 others

Petition No. E003 Of 2023 JONATHAN KITHI KAZUNGU......................5TH PETITIONER VICTOR KOMBE NZAI...............................6TH PETITIONER SAMWEL MAITHA JONATHAN....................7TH PETITIONER MILLICENT KHAYANGA NASIMIYU & 286 OTHERS........................................8TH PETITIONER VERSUS THE GOVERNOR, COUNTY GOVERNMENT OF KILIFI..........1ST RESPONDENT THE COUNTY SECRETARY, COUNTY GOVERNMENT OF KILIFI..........2ND RESPONDENT KILIFI COUNTY PUBLIC SERVICE BOARD.................................................3RD RESPONDENT RULING (On the 3rd Petitioner’s Notice of Motion dated 30th June 2026) A. INTRODUCTION 1. The Petition herein was instituted on behalf of some two hundred and ninety-four persons engaged by the County 2

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Petition No. E003 Of 2023 Government of Kilifi as casual employees, seeking the enforcement of their right to fair labour practices under Article 41 of the Constitution. It did not proceed to a hearing on the merits. On 30th September 2025, the parties, through their respective advocates, compromised it by a consent which was filed in Court and adopted as an order of the Court. 2. By the consent, the Respondents undertook, inter alia, to issue the Petitioners with employment contracts conferring security of tenure; to issue them with contracts for the financial years 2024/2025 and 2025/2026; to pay salary arrears for the period July 2024 to September 2025; to accord them first priority in positions advertised by the County Public Service Board; and to include them in the staff medical and work injury benefit cover. Of particular moment to the present application is clause 6, which provides: “6. THAT, the Petitioners who are non-employable as a result of lack of educational credentials or due to having attained retirement age and or due to lack of professional qualifications shall be handled separately.” 3

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Petition No. E003 Of 2023 3. It is against that backdrop that the 3rd Petitioner, Eva Kafko Mnene, has, some nine months after the consent, approached the Court by the Notice of Motion dated 30th June 2026. The motion is opposed by the Respondents. B. THE APPLICATION 4. The motion is expressed to be brought under Sections 1, 1A, 1B, 3, 3A and 53 of the Civil Procedure Act, and Articles 27, 28, 35, 41, 46, 47, 50 and 159 of the Constitution. Beyond the prayer for certification of urgency, which is now spent, it seeks the following orders: (a) That the Court do issue orders of injunction to prohibit, stop and direct the Respondents from terminating, altering, reviewing or changing the employment terms or contract of the 3rd Petitioner, or maintaining her employment status until the hearing of the application, or until payment of her terminal benefits; (b) That the Court do issue orders of injunction prohibiting, stopping and/or directing 4 the Respondents from

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Petition No. E003 Of 2023 terminating, altering, reviewing employment terms the of 3rd or changing Petitioner until the the calculation and payment of her terminal benefits, or further directions of the Court; (c) That the Court do issue such appropriate orders as the circumstances of the case may demand; and (d) That the costs of the application be provided for. 5. The application is premised on the grounds set out on its face, namely: that the Respondents served the 3rd Petitioner with a notice of termination of her employment contract; that the 3rd Petitioner has reached the age of retirement; that the consent between the parties is clear and unambiguous, and the termination notice is a ploy to deny the 3rd Petitioner her terminal benefits; that the 3rd Petitioner has worked for over ten (10) years on a casual basis, which is itself a violation of the employment laws and the Constitution; and that any termination notice in contravention of the order recorded by the parties is wrong and an abuse of the court process. 5

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Petition No. E003 Of 2023 6. The application is supported by an affidavit sworn on 30th June 2026 by Mr. Shitakha Tom Ambwere, the advocate on record for the Petitioners. He depones that he has acted for the Petitioners from the inception of the suit to the recording of the consent, and is therefore well versed with the facts; and that he swears “only on matters within my personal knowledge and as a legal representative of the Petitioners.” He then depones that the 3rd Petitioner has attained the age of retirement and that her contract is “purportedly being terminated, without taking into account her years of service or the Court Order as recorded”; that the notice, a copy of which he exhibits, contravenes the court order, has no legal basis and is an affront to the rule of law; that the 3rd Petitioner “would like to be paid for the 10 years she has worked for the County Government and all benefits as required by law”; and that the notice is an attempt by the Respondents to avoid their obligations under the consent and to abuse the court process. The exhibited notice is a letter from the County Public Service Board dated 26th May 2026, 6

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Petition No. E003 Of 2023 headed “End of Contract”, informing the 3rd Petitioner that her term contract would come to an end on 30th June 2026. 7. Subsequently, and in answer to the Respondents’ Replying Affidavit, the 3rd Petitioner swore a further affidavit. She confines herself, expressly, to the allegation that she absconded from duty. She describes the allegation that she absconded from January 2025 as a lie and a fabrication, contending that she could not have been away from work for a year and a half without the Respondents’ knowledge. She avers that her letter of 5th March 2026, written in response to a notice to show cause, has never been answered; that she fell seriously ill in February 2026, for which she exhibits treatment notes; and that the allegation is malicious and calculated to drive a false and punitive narrative to avoid paying her terminal benefits and gratuity. C. THE RESPONDENTS’ RESPONSE 7

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Petition No. E003 Of 2023 8. The Respondents oppose the application through a Replying Affidavit sworn by Mr. Gideon C. Mumba, the Acting Chief Executive Officer and Secretary of the County Public Service Board. As a preliminary point, he depones that the supporting affidavit, sworn by counsel for the Petitioners, touches on contested matters of fact, that it is impermissible for counsel to swear such an affidavit, and that it, together with the application it supports, ought to be struck out as incurably defective. 9. On the substance, he depones that the Board implemented the consent in respect of the 3rd Petitioner: she was issued with a letter of absorption dated 28th June 2024, regularising her status from casual to a one-year term contract as a Support Staff, and with a further contract dated 14th October 2025 running from 1st July 2025 to 30th June 2026; and she was paid her salary arrears, as reflected in the payslip he exhibits. 10. He further depones that the 3rd Petitioner absented herself from duty, which was reported by the County Director of 8

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Petition No. E003 Of 2023 Administration by a letter dated 25th February 2026; that she was issued with a notice to show cause dated 26th February 2026; and that by her letter of 5th March 2026 she apologised for her absence, which the Respondents read as an admission. The disciplinary process, he says, was overtaken by the expiry of her contract and remains unconcluded. 11. Finally, he depones that the 3rd Petitioner, having attained the mandatory retirement age of sixty years, was by the letter of 26th May 2026 informed that her contract would end on 30th June 2026, in keeping with Section 80(1) of the Public Service Commission Act, 2017 and the Circular of the Head of the Public Service dated 5th August 2024, which forbid the extension of the service of a public officer beyond the mandatory retirement age. Her contract, he maintains, was not terminated but ended by effluxion of time. As to her terminal dues, he states that they are yet to be addressed only because she is yet to clear with the County Government, and that they will be addressed in due course within the applicable legal regime. 9

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Petition No. E003 Of 2023 12. In a Further Affidavit sworn pursuant to the directions of the Court, Mr. Mumba placed on record the employment and medical cover status of seventy-one of the Petitioners, and reiterated that the application lacks merit. 13. The Respondents also filed written submissions dated 24th July 2026, in which they urge that the application be struck out for want of a competent supporting affidavit, relying on Kisya Investment Limited & others v Kenya Finance Corporation Ltd, HCCC No. 3504 of 1993 (unreported) and East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd [2002] KEHC 1122 (KLR); and, in the alternative, that the application fails the test in Giella v Cassman Brown & Co. Ltd [1973] EA 358, since the contract ended by effluxion of time and there is nothing left to restrain, the Court cannot compel the Respondents to retain an officer beyond the statutory retirement age, any claim to terminal dues is compensable in money, and the 3rd Petitioner has not come to equity with clean hands. 10

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Petition No. E003 Of 2023 D. ISSUES FOR DETERMINATION 14. I have carefully considered the application, the affidavits on either side, the annexures and the submissions. Three issues fall for determination: (a) Whether the matters raised, and the reliefs sought, are amenable to determination in a post-judgment application on affidavit evidence; (b) Whether the application is competent, regard being had to the affidavit upon which it is founded; and (c) Whether, in any event, the orders sought are available to the 3rd Petitioner. E. ANALYSIS AND DETERMINATION (i) Whether the matters raised are amenable to determination in a post-judgment application on affidavit evidence 11

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Petition No. E003 Of 2023 15. The starting point is the posture of this matter. The Petition is not pending for determination. It was compromised by the consent of 30th September 2025, which the Court adopted as its order. Once a suit has been so disposed of, what remains for the Court is, in the main, the enforcement of the terms of the consent and, where necessary, their interpretation. A concluded petition is not a standing platform upon which fresh grievances, arising after the consent and turning on new facts, may be litigated by way of interlocutory motion. 16. When the application is stripped of its form, its true character becomes apparent. The 3rd Petitioner seeks, first, to restrain the Respondents from bringing her contract to an end, and, secondly, to keep that restraint in place until her terminal benefits, for what is said to be over ten years of service, are computed and paid. That is, in substance, a claim to terminal benefits coupled with a challenge to the lawfulness of the manner in which her employment came to an end. Neither question was adjudicated in the Petition, and neither was resolved by the consent. Clause 6, on which the 3rd Petitioner leans, did not determine what, if anything, would be due to 12

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Petition No. E003 Of 2023 those Petitioners who had attained retirement age. It merely provided that their position would be “handled separately”. It reserved the question; it did not answer it. There is, accordingly, no ascertained obligation under the consent capable of enforcement by this motion. 17. Equally evident is that the questions which would have to be answered before the reliefs sought could be granted are sharply contested on the affidavits. They include: the duration and character of the 3rd Petitioner’s service, which the application puts at over ten years as a casual, while the Respondents’ documents show her regularisation onto a term contract with effect from July 2024; whether her separation was a termination, as she contends, or the natural expiry of a fixed-term contract, as the Respondents contend; whether she absconded from duty, and from when, the Respondents’ own documents variously pointing to January 2025 and July 2025, while she attributes her absence to illness in February 2026; whether her letter of 5th March 2026 is an admission of misconduct or an explanation of illness; whether, and in what amount, terminal benefits and gratuity are payable to her; 13

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Petition No. E003 Of 2023 and whether the Respondents have breached the consent at all. On each of these, an assertion on one side is met by a contrary assertion on the other. 18. Affidavit evidence is a perfectly proper vehicle for the determination of a matter where the material facts are not in serious dispute, and the controversy turns on questions of law, or on documents whose authenticity and import are not in contest. It is, however, an unsuitable vehicle where the facts are hotly contested and their resolution depends upon an assessment of credibility. A court confronted with conflicting affidavits has no principled basis upon which to prefer one deponent’s account over another’s; it has neither seen the witnesses nor had the benefit of their evidence being tested in cross-examination. Such disputes must be resolved in a claim heard in the usual manner, upon pleadings that define the issues, and upon oral evidence tested by cross-examination. 14

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Petition No. E003 Of 2023 19. The principle is well settled. In Kibutiri v Kibutiri [1983] KLR 62, the Court of Appeal, considering proceedings commenced by originating summons, a procedure that likewise proceeds on affidavit evidence, held that the procedure is intended for the determination of simple matters without the expense of a full trial, and that where serious and contentious questions of fact arise, they are not suitable for determination on affidavits but should be tried in the ordinary way, with evidence tested by cross-examination. In the specific context of employment disputes, the Court of Appeal in Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another [2016] eKLR cautioned against employment disputes that turn on contested facts being litigated through procedures that proceed on affidavit evidence, rather than by way of an ordinary claim in which the evidence can be properly tested. 20. There is a further difficulty. An interlocutory injunction is, by its nature, ancillary relief. It issues in aid of a pending claim, to preserve the subject matter of the dispute until the rights of the parties are determined. Here, there is no pending claim 15

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Petition No. E003 Of 2023 in which the 3rd Petitioner’s entitlement to terminal benefits, or the lawfulness of her separation, is to be determined. What she seeks is an injunction that would hold her employment open until benefits that have been neither pleaded, nor proved, nor quantified are calculated and paid. That is to seek final relief through an interlocutory door. The Court cannot countenance it. 21. I therefore find that the matters raised in the application, and the reliefs sought, are not amenable to determination in a post-judgment application on affidavit evidence. If the 3rd Petitioner has a claim to terminal benefits, or a grievance as to the manner in which her employment ended, her recourse lies in a claim properly instituted and heard in the usual manner. (ii) Whether the application is competent 22. Order 19 rule 3(1) of the Civil Procedure Rules requires that affidavits be confined to such facts as the deponent is able of 16

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Petition No. E003 Of 2023 his own knowledge to prove, save that in interlocutory proceedings an affidavit may contain statements of information and belief, provided the sources and grounds thereof are disclosed. 23. Allied to that rule is the settled principle that an advocate acting for a party ought not to swear an affidavit deponing to contentious matters of fact in that party’s cause. In Kisya Investment Limited & others v Kenya Finance Corporation Ltd (supra), Ringera J (as he then was) put it thus: “It is not competent for a party’s advocate to depone to evidentiary facts at any stage of the suit. By deponing to such matters, the advocate courts an adversarial invitation to step down from his privileged position at the Bar, into the witness box. He is liable to be crossexamined on his depositions.” 24. The same learned Judge returned to the point in East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd (supra), observing: 17

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Petition No. E003 Of 2023 “I have always deprecated depositions by advocates on contentious matters of fact in suits or applications which they canvass before the courts and I have never had any hesitation in striking out such depositions as a matter of good practice in our courts. The unseemly prospect of counsel being called upon to be cross-examined in matters in which they appear as counsel must be avoided by striking out such affidavits as a matter of good practice.” 25. In that decision, the learned Judge noted, too, that in Joseph Mwema Ngaca v United Insurance Company Ltd, HCCC No. 1409 of 2000, Hewett J upheld an objection that an application was incompetent because it was supported by an affidavit sworn by an advocate who had no personal knowledge of the matter and who deponed to contested matters of fact. The Supreme Court has since affirmed the principle in Odinga & 16 others v Ruto & 10 others [2022] KESC 56 (KLR), where it stated, at paragraph 136: 18

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Petition No. E003 Of 2023 “Though it is elementary learning, it bears repeating that affidavits filed in Court must deal only with facts which a deponent can prove of his knowledge and as a general rule, counsel are not permitted to swear affidavits on behalf of their clients in contentious matters, like the one before us, because they run the risk of unknowingly swearing to falsehoods and may also be liable to crossexamination to prove the matters deponed to.” 26. The rule is not without its exceptions. An advocate may properly depone to matters within his own knowledge, such as matters borne out by the record of the court, or to facts which are not in contest. See In re Estate of Lukas Ntalemea Kudate [2025] KEHC 10604 (KLR). But that is not the case here. 27. Counsel’s knowledge of the proceedings and of the consent, which he negotiated, does not extend to the 3rd Petitioner’s service history, to the circumstances in which her contract came to an end, or to the motives of the Respondents. Yet those are the very matters to which he depones: that she has 19

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Petition No. E003 Of 2023 served the County Government for ten years; that her contract is being terminated without regard to her years of service; that the notice is a device to avoid the Respondents’ obligations under the consent and an abuse of the court process; and, on the face of the motion, that the termination is a ploy to deny her terminal benefits. These are matters within the knowledge of the 3rd Petitioner and of the Respondents, not of counsel. They are, moreover, precisely the matters that the Respondents contest. Although counsel states, in his concluding paragraph, that his depositions are true to the best of his “knowledge, belief and information, which has been disclosed”, no source of any information is in fact disclosed. 28. By deponing to these matters, counsel descended from the Bar into the arena of the dispute, and in so doing exposed himself to the very prospect of cross-examination that the authorities caution against. It is telling that the 3rd Petitioner herself, whose knowledge these matters are, swore no affidavit in support of the motion. 20

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Petition No. E003 Of 2023 29. Nor is the defect cured by the 3rd Petitioner’s further affidavit. That affidavit is, by its own terms, a response to a specific averment in the Replying Affidavit concerning her alleged absence from duty. It neither adopts nor verifies the depositions on which the motion is founded. If anything, it deepens the factual contest between the parties, and so reinforces the conclusion I have reached on the first issue. 30. I am, therefore, satisfied that the supporting affidavit was improperly sworn. An application that rests upon an incompetent affidavit stands without an evidential foundation. The application cannot be sustained. (iii) Whether the orders sought are available to the 3rd Petitioner 31. Even were I to overlook the foregoing, the application would fail for a more fundamental reason. It is not in dispute that the 3rd Petitioner has attained the retirement age. The application itself asserts it, on its face and in the supporting 21

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Petition No. E003 Of 2023 affidavit, and clause 6 of the consent, on which she relies, is premised upon it. The copy of her national identity card exhibited by the Respondents shows her date of birth as 24th March 1964. She thus attained the age of sixty in March 2024, before the consent was recorded, and her payslip records her age as sixty-one. (The reference in the Replying Affidavit and the submissions to 1954 is plainly a slip, and nothing turns on it.) 32. Section 80(1) of the Public Service Commission Act, 2017, on which the Respondents rely, provides that a public officer shall retire from the service with effect from the date of attaining the mandatory retirement age, and forbids the appointing authority from extending the service of such an officer beyond that age. The 3rd Petitioner has not suggested that the provision does not apply to her, or that she is entitled to remain in service beyond the retirement age. 33. The first two substantive prayers seek to restrain the Respondents from “terminating, 22 altering, reviewing or

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Petition No. E003 Of 2023 changing” the 3rd Petitioner’s contract and terms of employment, and to maintain her employment status until her terminal benefits are paid. To grant them would be to compel a public body to retain in its service an officer who has passed the mandatory retirement age, in the face of a statutory prohibition. A court will not issue an order whose effect is to require a party to act in contravention of the law. 34. The prayers are, besides, overtaken by events. The 3rd Petitioner’s contract ran to 30th June 2026, the very date on which the application was filed, and it has since expired. There is, accordingly, nothing left to restrain. Courts do not issue orders in vain. 35. The orders sought cannot, therefore, be availed to the 3rd Petitioner. I should add, for the avoidance of doubt, that retirement does not of itself extinguish whatever lawful dues may be payable to a retiring officer. The Respondents themselves acknowledge that the 3rd Petitioner’s terminal dues are yet to be addressed and undertake to address them. Whether, and in what amount, any such dues are payable is a 23

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Petition No. E003 Of 2023 question that is not before me, and which, for the reasons I have given, cannot be determined on this application. F. COSTS 36. Costs are in the discretion of the Court. The application arises out of the implementation of a consent in a petition brought by employees for the enforcement of labour rights, and concerns an employee at the point of her retirement. In the circumstances, I consider that the justice of the matter is best served by each party bearing its own costs. G. DISPOSITION 37. For the foregoing reasons, I make the following orders: (a) The 3rd Petitioner’s Notice of Motion dated 30th June 2026 is hereby dismissed. (b) For the avoidance of doubt, nothing in this Ruling shall be construed as a determination of the 3rd Petitioner’s entitlement, if any, to terminal dues. 24

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Petition No. E003 Of 2023 (c) There shall be no order as to costs. 38. It is so ordered. READ, DATED, SIGNED AND DELIVERED AT MALINDI THIS 29TH DAY OF SEPTEMBER 2026. OCHARO KEBIRA JUDGE 25

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