REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. E275 OF 2025
ENG. ANTONY TAWAYI WAMUKOTA ……….……………… PETITIONER
VERSUS
THE KENYA ELECTRICITY TRANSMISSION
COMPANY LIMITED ……………………………...…….…1ST RESPONDENT
BOARD OF DIRECTORS OF KENYA ELECTRICITY
TRANSMISSION COMPANY LIMITED …………..….. 2ND RESPONDENT
THE ACCOUNTING OFFICER/CHIEF EXECUTIVE
OFFICER OF KENYA ELECTRICITY
TRANSMISSION COMPANY LIMITED ………………. 3RD RESPONDENT
JUDGMENT
The gist of the Petition is that the 2nd Respondent vide its Special meeting held on 18th September 2025, called for a disciplinary session against Eng. John Mativo, the 1st Respondent’s then Managing Director; under the express direction of the Public Service Commission vide a letter dated 11th June 2025, decided to send the Petitioner on a 3-month compulsory leave without any justifiable cause and arising out of a disciplinary process not linked, associated and/connected with him, in total violation of the law and procedure.
Aggrieved by the said decision, the Petitioner filed Petition No. E185 of 2025, seeking this Court’s intervention in finding that the impugned compulsory leave infringed on the Petitioner’s right to fair administrative action, was illegal and the same be revoked. The Honourable Court having heard the parties, directed parties to file written submissions and vide Judgment delivered on 17th December 2025, the court revoked the compulsion leave. However, on 16th December 2025, the Respondents sent the Petitioner on a 5-month interdiction without any basis and in total violation of the law and procedures Manual. He averred that both the Notice to show cause and the interdiction letters were dated 15th December 2025, and therefore, he was never given the reasons and opportunity to be heard before such a disgraceful and prejudicial decision was taken against him. That the interdiction was a well-coordinated scheme meant to frustrate the Petitioner and is being used a guise for his dismissal.
The Petitioner termed the 5-month interdiction as malicious, illegal, unreasonable, irregular, unprocedural and without any foundation or basis. He added that the 2nd Respondent chose to abruptly send him on interdiction in total disregard of the rules of natural justice, rule of law and the principle of fairness as he was neither given an opportunity to be heard nor was there a report on the purported investigation that culminated in the impugned compulsory leave. That the impugned interdiction is nothing but draconian, illegal and is being used as a guise for dismissal of the petitioner as the same lacked any valid reason. He averred that the basis of the assertion was that the Respondents ensured that he was sent on interdiction just a day to the judgment of this Honourable Court, a choreographed scheme to circumvent the decision of this Court. The Petitioner therefore seeks orders that:
(i) A declaration that the Respondents in sending the Petitioner on the impugned interdiction grossly violated and contravened Articles 27, 41, 47, 50 and 236 of the Constitution.
(ii) A declaration that the Petitioner is entitled to the payment of compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the Constitution.
(iii) A declaration that the Interdiction of the Petitioner was irregular, unprocedural, illegal, unconstitutional hence null and void ab initio.
(iv) An order directing the Respondents to unconditionally revoke the 5-month interdiction against the Petitioner and order for his immediate resumption of duty.
(v) An order revoking the Respondents’ Letter dated 15th December 2025 referenced as KET/5/1A/10013/kk/lck sending the petitioner on a 5-month interdiction.
(vi) An order revoking the decision of the Respondents contained in their Letter dated 15th December 2025 referenced as KET/5/1A/10013/kk/lck.
(vii) An order restraining the respondents either by themselves, employees, servants and/or agents from terminating the employment of the Petitioner based on the illegal interdiction.
(viii) The costs of this Petition be borne by the Respondents
The Respondents opposed the Petition vide a Replying Affidavit sworn by Eng. Kipkemoi Kibias, the 1st Respondent’s, acting Managing Director and Chief Executive Officer. He deposed that the jurisdiction of this court to hear and determine the said Petition was rendered otiose having been ousted on account of the doctrine of exhaustion. He stated that the 1st Respondent is a public body within the meaning of Section 2 of the Public Service Commission Act, 2017 and therefore the Petitioner ought to have sought redress in the first instance regarding his interdiction with the Public Service Commission pursuant to Section 74 (1), (2) and (5) of the Public Service Commission Act, 2017. He stated that by bypassing the statutory mechanism and approaching this Court as a forum of first resort, the Petitioner unlawfully invited the Court to assume jurisdiction in a matter expressly reserved by law to a statutory body, thereby rendering the Petition incompetent ab initio.
He deposed that the Petition improperly elevated an ordinary employment and disciplinary grievance into a constitutional dispute, contrary to the settled principle that where legislation has been enacted to give effect to constitutional rights, a litigant must first exhaust the remedies provided therein before invoking constitutional litigation. Consequently, the Petition is untenable in law and so is the motion application as it will be left with no legs to stand on.
In response to the specific issues raised in the Application, the affiant stated that:
“The Petitioner was the General Manager, Design & Construction at KETRACO, a senior management position charged with oversight of strategic national infrastructure projects funded through public resources; one of the projects that the Petitioner was overseeing was the Multinational Kenya Tanzania 400kV Power Interconnection Project; following deliberations of the Board of Directors at its meeting held on 11th August 2025, the Board considered a Circular from the Board Audit & Risk Assurance Committee regarding serious anomalies identified in the Multinational Kenya-Tanzania 400kV Power Interconnection Project.
It was established that under the Petitioner's oversight, the Project experienced grave governance, contractual, financial and performance lapses, resulting in exposure of the 1st Respondent to substantial financial loss, operational delays and reputational risk and pursuant to a resolution of the Board of Directors, the Petitioner was duly issued with a Show Cause Letter detailing specific acts and omissions constituting negligence of duty and gross misconduct.
He outlined the misconduct to include: failure to ensure delivery of the project within the scheduled timelines and budget, contrary to his obligation under Clause 7.2 (vii) of his Employment Contract, which required him to oversee the design, construction and commissioning of transmission lines and substation projects to ensure delivery within budget, time and scope; failure to ensure that contractor claims were thoroughly reviewed, verified and approved contrary to Clause 7.2(xv) and 7.2(xvi) of his Employment Contract, which required him to provide coordinate procurement of construction contractors and consultants and provide oversight in management of contractors and consultants; failure to confirm availability of funds and secure requisite approvals before committing the 1st Respondent to substantial expenditure contrary to Clauses 7.2(ix) and 7.2(xii) of the Employment Contract which required him to propose the Directorate's annual budget, procurement and work plans and to account for resource use in line with prevailing laws, policies and regulation; failure to safeguard value for money by endorsing acceleration costs amounting to Kshs. 849 Million contrary to Clause 7.2(vii) and 7.2(xii) of his Employment Contract which require him oversee the design, construction and commissioning of transmission lines and substation projects to ensure delivery within budget, time and scope and to account for resource use in line with prevailing laws, policies and regulation; failure to provide effective leadership and oversight in the management and coordination of the contractor by failing to ensure timely demobilization and subsequent remobilization upon the emergence of site acquisition challenges, thereby occasioning avoidable contractor idling costs to the Company, contrary to Clause 7.2(ii), 7.2(vii), 7.2(xvi) and 7.2(xvii) of his Employment Contract which requires him to provide leadership to Staff in the Directorate, to oversee the design, construction and commissioning of transmission lines and substation projects to ensure delivery within budget, time and scope, to provide oversight in the management of contractors and consultant, to coordinate design, project management, construction and commissioning of activities; failure to ensure that the initiation, review and approval of the contract variation/addendum followed prescribed processes, contrary to Clauses 7.2 (v) and 7.2(vii) of the Employment Contract, which required him to guide the development and implementation of strategies, policies, plans, standards and procedures pertaining to design, project management, construction and commissioning and to oversee the design, construction and commissioning of transmission lines and substation projects to ensure delivery within budget, time and scope; failure to ensure compliance with statutory limits on contract variations under the Public Procurement and Asset Disposal Act, 2015, including the 25% variation threshold, contrary to Clause 7.2 (vi) of his Employment Contract, which requires him to ensure compliance with relevant legal, legislative and regulatory requirements.
The affiant stated that the Petitioner's cumulative acts and omissions exposed the Respondent to potential financial loss, operational delays and reputational risks , contrary to Clauses 7.2 (vii), 7.2(x) and 7.2 (xii) of the Employment Contract which required him to oversee the design, construction and commissioning of transmission lines and substation projects to ensure delivery within budget, time and scope, to manage the implementation of risk mitigation measures and update the Directorate's Enterprise Risk Register and to account for resource use in line with prevailing laws, policies and regulation.
That in view of the aforementioned allegations, the Board of Directors, KETRACO deliberated and considered the same to constitute negligence of duty and gross misconduct under the Company's Human Resource Policy & Procedures Manual 2019, Part 11, Section 11(iii)(a) and (r), Company Code of Conduct and Ethics, Part IV, Section 2(iii)(a) and (s), Public Service Commission Human Resource Policies & Procedures for Public Service, Sections on discipline, accountability and breach of trust, Section 44(4)(c) and (g) of the Employment Act, 2007, which classifies neglect of duty and failure to perform responsibilities with due care as gross misconduct, and Clause 19.2 (i), (iii), (viii) and (ix) of the Petitioner's Employment Contract, prescribing summary dismissal for gross misconduct, negligence or violation of contractual obligations. He stated that the Petitioner was therefore required to show cause why disciplinary action should not be taken against him on grounds of gross misconduct, by providing a response to the show cause letter within 14 days.
The affiant, further deponed that upon further deliberations by the Board of Directors at its meeting held on 15th December 2025 and noting that the investigations into the matters related to the Project had been commenced, it was determined that it was necessary to take measures to safeguard the Company's interest during the investigations. As such, the Petitioner was lawfully issued with an interdiction letter. He contended that the interdiction letter clearly informed the Petitioner that while under interdiction he would earn half basic salary and receive house allowance until such a time that the subject matter of the interdiction is determined, in addition to medical privileges provided by the Company. He deposed that instead of responding to the Show Cause Letter and participating in the ongoing disciplinary process and the appellate mechanisms prescribed by law, the Petitioner prematurely filed the present Petition, seeking to halt the disciplinary proceedings midstream.
He deposed that several complaints of impropriety, audit queries and governance concerns had arisen in respect of other projects under the Petitioner’s purview, prompting ongoing and scheduled audits and investigative processes distinct from the Kenya-Tanzania 400kV Project. On the Petitioner’s claim that the interdiction was issued a day before the Judgment in Petition No. E185 of 2025, he stated that the facts of this case were completely distinct from those in E185 of 2025. He added that the impugned compulsory leave in E185 of 2025 was issued in relation to the Petitioner's oversight of the procurement and transportation of transformers in the Turkwel-Ortum-Kitale Substation Project Lot 1A.
On allegation that the 5-month interdiction had no basis and was in total violation of the law and procedures manual, the affiant denied the allegations that the interdiction was malicious or intended to lock him out from justice. He added that the interdiction is a lawful procedural administrative safeguard exercised in good faith pursuant to the 1st Respondent's statutory mandate, Human Resource Policy & Procedures Manual, the Petitioner's Employment Contract and the applicable labour laws; following the emergence of serious allegations of negligence of duty and gross misconduct arising from the Petitioner's oversight of the Multinational Kenya - Tanzania 400kV Power Interconnection Project.
He averred that the interdiction was simply a precautionary measure intended to ensure the smooth conduct of the investigations in relation to the Kenya-Tanzania 400kV Project. The affiant denied the allegation that the Petitioner was condemned unheard, stating that the same is false, misleading and a distortion of the facts. He added that the timing of the interdiction was informed solely by the Board's deliberations and the status of investigations and not by any intention to circumvent or undermine any decision of this Honourable Court. He argued that the mode of communication complained of did not vitiate the legality of the interdiction, the substantive letter having been duly issued and conveyed.
He deposed that the Petitioner was at no time barred from accessing justice, as he was at liberty to respond to the show cause letter participate in the disciplinary process and invoke the lawful appellate mechanisms. He stated that the Petitioner's portrayal of the interdiction as actuated by ulterior motives is therefore speculative and calculated to mislead this Honourable Court into micromanaging an ongoing and lawful internal disciplinary process, which intervention would be premature and contrary to well-established principles governing employer disciplinary autonomy. He stated that granting the prayers would irreversibly interfere with the Respondent's statutory mandate to conduct disciplinary processes and would render the pending investigations nugatory. On the prayer seeking an injunction restraining the Respondents from terminating the Petitioner's employment, he stated that no decision to terminate the Petitioner's employment has been made or threatened.
He added that the disciplinary process was ongoing and any apprehension of termination was speculative, premature and unsupported by facts. The Court was urged not to substitute itself for the employer's disciplinary framework adding that the Court, having been prematurely invited to assume jurisdiction in contravention of an express statutory framework, is duty-bound to down its tools and decline further engagement in order to uphold the doctrine of exhaustion of administrative remedies. He stated that the Petition is without merit and ought to be dismissed in the interests of justice.
Petitioner’s Submissions
The Petitioner raised several issues for determination: whether the interdiction was unprocedural, unlawful and unconstitutional; whether the Petitioner is entitled to compensation for violation of his constitutional rights; and whether the Petitioner is entitled to the costs of the suit.
On the first issue, it was submitted that the interdiction against the Petitioner was illegal, irregular, unlawful and unconstitutional as the Respondents sent the Petitioner on a 5-month interdiction without any basis, while he was still on an illegal compulsory leave that was revoked by the Court in ELRC Petition E185 of 2025. It was submitted that the Petitioner was never given the reasons and opportunity to be heard before such decision was taken against him. The 5-month interdiction was termed as offensive to the rules of natural justice, flouted the 1st Respondent’s Human Resource Policy and Procedures Manual, was afoul of the constitutional provisions on fair labour practices, rendering the same illegal, unconstitutional, unlawful hence null and void ab initio.
It was submitted that a disciplinary process can never be in perpetuity, and the Respondents could not purport to hold the Petitioner accountable indefinitely. Reliance was placed on paragraph 11.4 of the Respondents’ Human Resource Policy and Procedure Manual which outlines the principles that the Respondents should be guided by in handling disciplinary matters. It was contended that the Respondents overlooked this provision in effecting the interdiction against the Petitioner.
It was added that the Respondent’s disregarded paragraph 11.5 (f) of its Human Resource Policy and Procedures Manual which provides that: “Thorough investigation of an alleged offence shall be undertaken before any disciplinary action is taken.” It was submitted that no investigation had been undertaken on the Petitioner concerning the Kenya–Tanzania Interconnector Transmission Line and if there was any there should have been a team duly constituted by the Managing Director as provided for at paragraph 11.9.15 of the HR Policy and a report provided in line with paragraph 11.10(f) of the said Policy. Further reliance was placed on the provisions of the Fair Administrative Action Act No. 4 of 2015 and clause 11.5(a), (d) and (f) of the Respondents’ Human Resources Manual which provides that: “Disciplinary cases shall be processed through the company’s HRAC; and there should be proper framing of charges with full particulars of the case including the applicable provisions of the Constitution, legislation or code of conduct alleged to have been breached. Thorough investigation of an alleged offence shall be undertaken before any disciplinary action is taken.” It was submitted that the Respondents had repeatedly violated their own Human Resource Policy and Procedures Manual by failing to accord the petitioner the right to fair administrative action and fair hearing. Reliance was placed on the decisions in Wamukota v Kenya Electricity Transmission Company Limited & 2 others (Petition E213 of 2023) [2024] KEELRC 796 (KLR) (8 April 2024) (Judgment), and Otoch v Muthaura & another (Cause E 697 of 2022) [2022] KEELRC 13564 (KLR) (15 December 2022).
On the second issue, it was submitted the Petitioner had clearly demonstrated how his constitutional rights were violated and the court ought to find in his favour and compensate him. Reliance was placed on the decision in Wambui v Hallmark Marketing Limited (Petition E097 of 2022) [2026] KEELRC 138 (KLR) (28 January 2026) (Judgment). It was further submitted that the Petitioner had suffered emotionally and financially by defending all the Respondents’ unprocedural and unconstitutional actions. It was reiterated that the Petitioner had to defend his suspension, compulsory leave and now his interdiction. Counsel added that the Respondents had illegally and unconstitutionally kept the Petitioner on defense since the year 2023 by repeatedly initiating what this court in previous judgments has found to be illegal, unprocedural and unconstitutional. The Court was urged to find that the Petitioner’s constitutional rights were violated and that he be adequately compensated for the suffering, pain and emotional distress that he has had to endure.
On the last issue, counsel submitted that as a result of the Respondents’ actions, the Petitioner had been subjected to public ridicule, untold emotional anguish and distress. It was submitted that this was not the first time the Respondents were maliciously and unscrupulously seeking to find ways to unfairly terminate the Petitioner’s employment contract. Counsel added that this was the third consecutive disciplinary process and all previous ones had been revoked by this Honorable Court. The Court was urged to hold the 2nd Respondent’s Board of Directors personally liable and each director and Respondent be condemned to pay costs of the suit to the Petitioner.
In their submissions The Respondent’s raised the following issues for determination: whether the petition meets the threshold of a constitutional petition; whether the interdiction was lawful and procedurally fair; whether the Petitioner was entitled to the reliefs sought; and who should bear the costs.
On the first issue, counsel submitted that this Petition did not meet the threshold of a proper constitutional petition as it was substantially an ordinary employment and labour dispute disguised as a constitutional cause. It was submitted that the gravamen of the Petition was to the challenge the 5-month interdiction, the alleged denial of a hearing and the alleged procedural flaws in the employer’s disciplinary process, coupled with prayers for revocation of the interdiction, reinstatement to duty, restraint from termination and payment of compensation. Counsel contended that these were classic employment remedies that could be fully adjudicated within the statutory framework of the Employment Act, the Public Service Commission Act and the 1st Respondent’s Human Resource Policy and Procedures Manual, without the necessity of converting the dispute into a constitutional petition.
Reliance was placed on the decision in Anarita Karimi Njeru v Republic [1979] eKLR, which prescribe the foundational test for constitutional pleadings. It was urged that although the petitioner had enumerated Articles 28, 31 and 40 of the Constitution as having been infringed, no particulars were pleaded with reasonable clarity on how they were been violated and the extent of the violation. It was submitted that the Petitioner had not demonstrated how the Respondent, who is not the State, had failed to support or infringed such right under Article 40 of the Constitution, as the said right was the responsibility of the State. Counsel further cited the decision in Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445(KLR), where the Court further elucidated the threshold of constitutional litigation as was the decision in C O D & another v Nairobi City Water & Sewerage Co. Ltd [2015] eKLR.
On the doctrine of constitutional avoidance, counsel relied on the Court of Appeal decision in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR, adding that the Petitioner was attempting to constitutionalize what was essentially a complaint about disciplinary measures. It was contended that the Petition did not meet the threshold of a constitutional petition and offended the doctrine of constitutional avoidance, and should therefore be found incompetent as a constitutional cause.
On the second issue, reliance was placed on guidelines on interdiction set out under section 11.12 of the Respondents Human Resource Policy and Procedures Manual, section 4.2.1 of the Public Service Commission Discipline Manual, and section 70 of the Public Service Commission Act, to argue that the Petitioner’s interdiction was lawful and procedurally fair. It was submitted that the said instruments permit interdiction as an interim, non-punitive measure where allegations of gross misconduct capable of leading to dismissal are under investigation or where criminal proceedings are contemplated. It was added that the Replying Affidavit disclosed serious allegations of negligence of duty, breach of procurement laws and exposure of the 1st Respondent to substantial financial loss on the Multinational Kenya–Tanzania 400kV Power Interconnection Project.
It was submitted that by their nature, the allegations fell squarely within section 44(4)(c) and (g) of the Employment Act, as neglect of duty and conduct detrimental to the employer’s property and interests. It was further submitted that the decision to interdict was therefore not only lawful, but necessary to safeguard the integrity of investigations. It was argued that the Respondent’s procedurally complied with the safeguards required by the PSC framework, the Respondent’s Human Resource Policy and Procedure Manual, Article 47 of the Constitution of Kenya and the Fair Administrative Action Act. It was contended that the Petitioner was first served with a detailed show cause letter particularizing the alleged negligence and gross misconduct and inviting his response within a specified period, in line with the PSC Discipline Manual requirement that interdiction be preceded or accompanied by a show cause process in cases that may lead to dismissal.
Counsel submitted that the subsequent interdiction letter annexed as annexure KK-3 on page 14 – 15 of the Respondents’ Replying Affidavit dated 14th January 2026 preserved the statutory protections by confirming entitlement to half basic salary, full house allowance and continued medical cover, in accordance with Section 70(2) of the Public Service Commission Act and Section 11.12 of the Respondent’s Policy. Counsel added that the interdiction letter also clearly provided that the interdiction was for a specific period of 5 months pending finalization of the investigations, underscoring that the interdiction was an interim administrative safeguard rather than a disciplinary sanction and the Petitioner could not credibly claim to have been condemned unheard. He added that interdiction was also provisional, reversible and distinct from any disciplinary determination. Counsel submitted on section 70 of the Public Service Commission Act and the PSC Discipline Manual, which provide that where an officer under interdiction is neither dismissed nor otherwise punished, withheld benefits are to be restored, reinforcing the temporary and non-adjudicatory character of the measure.
It was submitted that in spite of that, the Petitioner bypassed the internal disciplinary and appellate mechanisms and prematurely invited this Court to halt an ongoing, lawful disciplinary process, contrary to the doctrine of exhaustion. Counsel was submitted that on basis of the senior public office involved and the high-value infrastructure projects funded by public resources, there was no legal or factual basis for judicial interference with the interdiction at this interlocutory stage. Reliance was placed on the Court of Appeal reasoning in Mutwol v Moi University (Civil Appeal 118 of 2019) [2022] KECA 537 (KLR) (28 April 2022) (Judgment) adding that the Petitioner’s attempt to challenge the interdiction on the basis of duration is therefore premature and legally unsustainable. It was submitted that applying the binding authority to the facts before this Court, it was evident that the interdiction of the Petitioner was lawful, justified and procedurally sound.
It was urged that the challenge mounted by the Petitioner was therefore devoid of legal merit and constituted an improper attempt to halt a legitimate disciplinary process midstream. Counsel cited the decision in Bartholomew Wanyama Vs Moses Gitari and 2 Others (Industrial Court Cause No. 973 of 2011) as cited with authority in Paul Mwaura Mbugua V Kagwe Tea Factory Ltd & Another [2012] KEELRC 72 (KLR) where it was held that suspension from employment was not a form of termination of employment and that upon completion of investigations, further action needs to be taken. While challenging the Petitioner’s counsel’s argument that the Petitioner was never accorded an opportunity to be heard prior to his interdiction, reliance was placed on section 41 of the Employment Act, noting that the same did not apply in cases of interdiction. Reliance was further placed on Chrispin Otieno Pudo & 6 others v Kisumu County Public Service Board & another [2017] KEELRC 1953 (KLR).
Concerning the Petitioner’s allegation that he was placed on interdiction without basis, justifiable cause, investigation or being accorded a hearing; the Petitioner was accused of approaching this Court in clear violation of the equitable maxim that he who comes to equity must come with clean hands. Counsel added that a party that deliberately withheld or misrepresented material facts cannot seek the discretionary reliefs of this Court. It was urged that the Petitioner’s argument that he ought to have been furnished with an investigation report before interdiction is therefore a clear misapprehension of the disciplinary process in law. Reliance was placed on the decision in Luka Korir v Moi Teaching and Referral Hospital [2022] eKLR, where the Court unequivocally held that a hearing is not a prerequisite to suspension, as Section 41 of the Employment Act applied only at the stage of termination. It was submitted that the Petitioner’s claim was devoid of merit, tainted by lack of candour and intended to improperly invite the Honourable Court to interfere with a lawful and ongoing disciplinary process; and thus, ought to be dismissed in its entirety.
On the third issue, counsel submitted that the Petitioner was not entitled to the declaratory, injunctive and compensatory reliefs sought on account that: the matter is an employment dispute not a constitutional cause; the interdiction and disciplinary process were ongoing and lawfully grounded in statute and policy; courts are required to exercise restraint and avoid interfering with an employer's internal disciplinary processes except in the clearest of cases. Counsel added that it has been held that internal discipline is primarily the employer's prerogative and that judicial interference was only justified in narrow, exceptional circumstances. Reliance was placed on the decision in Ann Wambui Kamuiru v Kenya Airways Limited eKLR, and Aviation and Allied Workers Union V Kenya Airways Limited [2012] KEELRC 53 (KLR).
Counsel submitted that there is no evidence whatsoever that the Respondents have impeded or rendered illusory the Petitioner’s ability to ventilate his grievances within the internal framework. It was submitted that the material placed before this Court demonstrated a procedurally sound process, anchored on due process and the rules of natural justice. It was urged that this case was not one of the rare and exceptional cases warranting judicial intervention. Counsel added that the drastic and anticipatory reliefs sought were therefore premature, legally untenable and amounted to an unwarranted invitation for the Court to usurp the employer’s lawful administrative function. Counsel urged that the Petitioner was not entitled to the prayers in the Petition and the Court should decline the invitation to interfere with an ongoing, lawful internal disciplinary process.
On the fourth issue, counsel submitted that costs of the suit ordinarily follow the event. Reliance was placed on the decision in Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 others.
The Court was urged to exercise its unfettered discretion and awards costs of the suit to the Respondent.
Analysis and determination
The issues that arise for determination are whether the Petition meets the threshold of constitutional petitions, whether the doctrine of exhaustion is applicable in this matter and whether the Petition is merited.
On the first issue, Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, (hereinafter the Mutunga Rules) is clear on the structure and form to be taken by constitutional petitions should take.
It provides that:
10. Form of petition
(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g)the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
On the other hand, in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) the Court of Appeal observed that:
45.We must point out that Anarita Karimi Njeru was decided under the old Constitution. The decision in that case must now be reconciled and be brought into consonance with the New Constitution. In our view, the present position with regard to the admissibility of petitions seeking to enforce the Constitution must begin with the provisions of article 159 on the exercise of judicial authority. Among other things, this article stipulates that:(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.
46.We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.
47.While the present petition might not be the epitome of precise, comprehensive, or elegant drafting, our view is that the complaints raised by the petitioner are concrete enough to warrant substantive consideration by the court: The petitioner complains against the appointment of the Interested Party to the Commission; and thinks that the appointment, at a minimum, violated article 73 of the Constitution as far as integrity and suitability of the interested party for the appointment to the position is concerned. That much seems not to be in doubt. Indeed, both the respondents and the Interested Party have proceeded from this understanding. They have sought to explain at length the contours of article 73 and chapter six of the Constitution in response to the petitioner’s allegations. If one needed evidence that these parties understood the claim facing them, it is to be found in their various papers filed in court and the oral submissions made in court. This being a constitutional issue of immense public importance and interest, we refuse to worship at the altar of formal fetishism on this issue and hold that the controversy at issue has been defined with reasonable precision to warrant a proper judicial determination on merits.
From the foregoing, and the Respondents’ ability to precisely answer the Petition, the court is satisfied that the Mutunga Rules have been complied with.
On the second issue, the court guided by the holding of the Court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (interested parties) (2020) eKLR, as follows:
59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)
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 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.
63. Article 165(1) of the Constitution vests in the High Court vast powers including the power to ‘determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened’ and the jurisdiction ‘to hear any question respecting the interpretation of the Constitution.’
In its Ruling delivered on 6th March 2026 by Hon. Lady Justice Wasilwa the court found that the Respondents’ actions infringed the Petitioner’s rights as follows:
91. The petitioner applicant has indicated that he was sent on interdiction without being issued with any show cause letter. From the evidence before court, the applicant was interdicted vide a letter dated 15/12/25 which stated that the interdiction was to be for a period of 5 months pending finalization of the investigation. The letter referred to another of 15/12/25 Ref KEY/5/1A/10013/KK/LCK which was a show cause letter. It is apparent that show cause letter and the interdiction letter were both dated the same day which means that the respondents did not give the applicant any time to respond to the show cause before making the decision to interdict him and then the show cause letter was a mere formality. The respondents in the circumstances breached rules of fair hearing and their own HR policy.
92. It is also curious to note that the interdiction was done when the applicant was on a 3 months compulsory leave which was later revoked by court as being unlawful. On the face of it, it is apparent that the action of the respondent point to the existence of a prima facie case against the respondents and which this court must correct.
93. Court would not normally interfere with internal disciplinary processes between an employer and employee but would normally do so to prevent miscarriage of justice and put the right procedure in place.
94. In the circumstances, I find the interdiction and show cause letter was issued without proper consideration of law and procedure and I accordingly suspend the interdiction and show cause letter and order immediate resumption of duty pending hearing and determination of this petition. The application by the respondent is found without merit and is dismissed.
Having found as much the issue on doctrine of exhaustion is otiose and what is left for determination by this Court is quantum of damages payable to the Petitioner.
In determining the compensation payable, see the court is guided by the reasoning of the Court of Appeal in Kariuki v Attorney General [2014] KECA 713 (KLR) where it held that:
99. In Mohamed Juma v Kenya Glass Works Ltd, CA No. 1 of 1986 (unreported) Madan, JA again, aptly observed that an award of general damages should not be miserly, it should not be extravagant, it should be realistic and satisfactory and therefore it must be a reasonable award. In the same judgment, he addressed an argument similar to the one before us, tying the quantum of damages to an appellant’s station in life:
“It is not always altogether logical that general damages should be assessed in relation to the station in life of a victim. There must be some general consideration of human feelings. The pain and anguish caused by an injury and resulting frustrations are felt in the same way by the poor, the not so rich and the rich. Again inflation is also no respecter of persons.”
100.Without in any way downplaying the gory violations that the appellant suffered, we find the quantum of damages claimed to be extravagant and exaggerated. We do not agree with the invitation by the appellant to seek mathematical precision in the award of damages. At any rate, the sum of kshs 250,000 per day is altogether fanciful. We would accordingly award the appellant a global sum of Kshs. 15,000,000/= as general damages for violation of his constitutional rights, including in particular the violation of his right to a fair trial by an independent and impartial court.
In the instant case, although the Petitioner was sent on compulsory leave, which the court nullified, was interdicted and issued with a notice to show cause dated 15th December 2025, both of which the court suspended and ordered resumption of duty on 5th March, 2026, the Petitioner suffered nominally and considering that the Petitioner is still in employment, in the courts view, the sum of Kshs.50,000.00 is sufficient.
In the upshot judgment is entered in favour of the Petitioner against the Respondent as follows:
(a) Declaration that interdiction of the Petition vide letter dated 15th December, 2025 was unprocedural and illegal and is hereby revoked.
(b) Award of Kshs.50,000.00 in damages.
(c) Costs of the suit at ½ scale.
For the avoidance of doubt, the Respondent is at liberty is institute fresh disciplinary process in accordance with the law and its internal policies.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 17TH DAY OF JUNE, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI – PET E275 OF 20252 OF 30 |