REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. E003 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
FRANCIS AWINO…………………………………………..…. PETITIONER
-VERSUS-
DAVID NJUGUNA MATHU……………………….………. RESPONDENT
JUDGEMENT
The Petitioner filed the instant petition dated 7th January 2026 together with a Notice of Motion of even date under Certificate of Urgency seeking various interim reliefs pending the hearing and determination of the Application and/or petition but non was deemed merited pending the hearing and determination of the petition and the application fell by the wayside.
On 9th January 2026, when the matter came up the court did not discern any urgency in the matter and directed service and responses and a mention on 22nd January 2026 for appropriate directions. Directions on the filing and exchange of submissions were issued on 13th April, 2026 and 18th May 2026 occasioned by non-compliance by the parties.
The petitioner’s case is that the Respondent’s Managing Director, Mr. David Njuguna Mathu was appointed on 6th November 2022 for a non-removable term of 3 years due to lapse in November 2025 but was still in office having secured another contract in 2023.
That the Respondent’s Board of Directors declared the 2023 contract void and at the instigation of the board, the Attorney General provided a legal opinion on the issue of appointments of the Chief Executive Officer but the Managing Director remained in office.
According to the petitioner the Respondent ought not to be in office. The petition is based on Article 2, 10, 73, 232, 47, and 201 of the Constitution of Kenya, Section 5 (3) of the State Corporations Act Leadership and Integrity Act, Government circulars and Mwongozo Code of Governance for State Corporations.
The petitioner prays for;
1. Declaration that the holding of office of MD/CEO beyond the lawful fixed-term contract in November 2025 is unconstitutional and void.
2. Declaration that renewal extension or variation of the Respondent’s tenure effected otherwise than by a competitive and transparent process is illegal and invalid.
3. An injunction and/or prohibition to restrain the Respondent from remaining in office accessing the work place or performing the duties of MD/CEO.
4. An Order directing, he Respondent to vacate office and hand over immediately.
5. An order of restitution compelling the respondent to refund or repay all salary allowances, benefits and other emoluments received without authority.
6. An order directing a forensic audit and accounting of all payments benefits or allowances paid or accrued to the Respondent, by the Auditor General.
7. An order of surcharge be issued against the Respondent for public funds paid to the Respondent.
8. An order of mandamus to compel the relevant board and/or appointing authority to initiate (a) an orderly and lawful transition process upon expiry of the Respondent’s tenure. (b) appoint an officer to act in the position and (c) commence a competitive and transparent recruitment process.
9. A permanent injunction restraining the Respondent from:
(a) holding himself out as a public officer.
(b) Making decisions, signing documents or exercising authority on behalf of the institution and
(c) Accessing or utilizing public resources, systems or facilities associated with the office.
10. A declaration that the Respondent is unfit to continue holding public office, for abuse of office conflict of interest and violation of law.
11. An order directing referral of the Respondents conduct to the appropriate oversight and investigative bodies including EACC Auditor General and the PSC.
12. An order that the Respondent bears personal liability for any loss to the public for his unlawful occupation of office and receipt of public funds.
13. Costs of the petition
14. Such further other or consequential orders as the court may deem just, fit and expedient to grant in the interest of justice.
Respondent’s Case
In opposition to the petition, the Respondent filed a Replying Affidavit sworn on 19th January 2026 (incorrectly indicated as 2025).
The affiant deponed that the petition herein was frivolous, vexatious, bad in law and untenable and was an abuse of court process.
The affiant deposed that he was appointed the CEO/Managing Director of the National Housing Corporation on 15th September 2022 effective 7th November 2022 for three (3) years competitively.
That the 2023 contract was issued by the Interested Party pursuant to a resolution on 27th September, 2023 to transition all staff to new contracts under the Human Resource Instruments effective 1st November 2023 and the contract was to run from 1st November 2023 to 31st November 2026, but was nullified by the board vide resolution dated 4th June 2025 and retained the earlier contract.
The affiant further deponed that on 10th September 2025, the board resolved to continue the contract for a further period of 12 months up to 8th November 2026 and a letter to that effect was issued and his remaining in office was lawful and he was a law-abiding person.
The affiant denied having abused office or engaged in irregularities or unlawful conduct.
He characterized the petitioner’s allegations as opinion unsupported by credible evidence.
That since the petition was based on the 2023 contract, which the board nullified, it had nothing to stand on.
The affiant averred that the instant petition was intended to harass him as there was a similar petition filed as Nairobi ELRC PET No. E150 of 2025 pending determination and thus an abuse of court process and the suit was unsustainable.
Petitioner’s submissions
As to whether the Respondent’s occupation of office is lawful, Mr. Francis Awino submitted that a public officer could not rely on administrative convenience defective instruments or internal resolutions to defeat constitutional norms citing the decision in Judicial Service Commission v Gladys Boss Shollei & another (2014) eKLR to reinforce the submission and urge that failure to observe the safeguards rendered the appointment void ab initio.
On the validity of the contract and continuation arrangement, Mr. Francis Awino submitted that the contract was legally infirm and incapable of conferring enforceable rights or tenure on account of conflict of interest and self-dealing, violation of the constitution, ultra vires board action and the absence of mandatory oversight approvals.
Reliance was placed on Kenya Airways Ltd v Satwant Singh Flora (2013) eKLR as was the decision in Mumo Matemu v Trusted Society of Human Rights Alliance (2013) eKLR, to urge that courts had a constitutional duty to not only resolve disputes but safeguard governance architecture from erosion.
The petitioner prayed that the petition be allowed with costs.
Respondent’s submission
As to whether the petition is moot, academic and/or overtaken by event’s, counsel for the Respondent submitted that the factual landscape had changed since the board nullified the 2023 contract and affirmed the contract dated 15th September 2022 and extended the contract by a resolution on 10th September 2025 upto 6th November 2026, and thus the 2023 contract lacked legal efficacy.
Reliance was placed on the decision in Daniel Kaminja & 3 others (Suing as Westlands Environment Caretaker Group v County Government of Nairobi (2019) Eklr, on academic and hypothetical suits which serve no utilitarian value.
Reliance was also placed on the decisions in Nthuli & 2 others v Hackett & 2 others 2024 KEHC 6990 (KLR) and Mwangaza v County Government of Meru & another (2014) KEHC 9544 (KLR) to submit that the impugned 2023 contract had already been nullified by a competent authority and the Respondent’s tenure of office was based on a different contract thus the facts upon which the instant petition was based had been overtaken by events.
As to whether there existed a constitutional controversy reliance was further placed on the Kaminja Case (Supra) as well as the sentiments of the court in Mugane v Cabinet Secretary Ministry of Youth Affairs and Sports & another (2024) KEHC 2781 (KLR) where a Gazette Notice, the subject matter of the suit had already been revoked. The petition was dismissed and the reliefs sought would not revive the old contract or reverse the active contract.
The decision in Ole Pere & another v District Land Adjudication Office Narok South & 24 others (2025) KECA 113 (KLR) was cited to urge that the instant petition did not raise a constitutional matter but a specific and spent contract and no live legal issue for determination.
As to whether continued occupation of office by the Respondent was lawful, counsel submitted that it was as it was founded on a valid contract effective until 6th November 2026.
Counsel urged the court to dismiss the petition with costs.
Analysis and determination
Documentary evidence provided by the parties reveals that the Respondent was appointed as Managing Director/Chief Executive Officer (hereinafter C.E.O) of the National Housing Corporation (herein after NHC) vide letter dated 15th September 2023 effective 7the November 2022 for a period of three (3) years, renewable at the instance of the employee.
Further evidence revealed that sometime in September 2023 the board of directors of the NHC resolved that all staff in Grades 1, 2 and 3 transition to the new structure pursuant to the approved human resource instruments on fresh contracts effective 1st November 2023 and vide letter dated 5th October 2023, the board of directors substituted the Respondent’s contract of service dated 15th September 2022 with a new one for three (3) years effective 1st November 2023 on similar terms save enhanced remuneration and the Respondent accepted the new contract on 13th October 2023.
The contract was signed by the Chairman, Board of Directors of the NHC in the presence of William Keittany and the Respondent in the presence of Mr. Pius Omullo Ouma.
However, incomplete copies of minutes of the Board of directors of the NHC signed on 5th June 2025 showed that the board had resolved that Mr. William Keittany be transitioned to the position of Corporation Secretary and General Manager Legal Services subject to guidance of the Public Service Commission and the contract of service issued to the Respondent on 5th October 2023 be nullified for being unlawful, ultra vires and executed without requisite constitutional and legal authority for being in contravention of Article 234 of the Constitution of Kenya, Mwongozo Code of Governance, Advisory of the Attorney General and applicable HOPS, Circulars on CEO tenure and renewal.
According to the board of directors of the NHC, nullification of the contract of 5th October 2023 revived the earlier contract, a legal conundrum.
Documents availed by the petitioner, which the respondent did not contest further revealed that the Chairman of the Board of directors of the NHC sought legal advice from the Office of the Attorney General vide letter dated 30th June 2025 on the board’s resolution on 4th June 2025 and related issues on the contractual status of the Respondent as the CEO and the Attorney General rendered an advisory vide letter dated 18h July 2025.
However, pages 2 and 3 of the copy of the advisory on record are unclear owing poor photocopying. The pages are illegible and of no evidential value to the court.
The Respondent contentested the resolution of the board of directors dated 5th June 2025 asserting that the contract remained valid and bindings which necessitated a further advisory from the Office of the Attorney General vide letter dated 3rd July 2025. The letter was copied to among others the Cabinet Secretary State Department of Housing and Urban Development Permanent Secretary, Inspector-General State Corporations Secretary State Corporations Advisory Committee (SCAC) and the CEO Public Service Commission.
In a response by the Cabinet Secretary to the chairman’s request to hold a continuation of the 228th full board meeting, the Cabinet Secretary queried why a resolution already made was still part of the agenda of the intended meeting.
The Cabinet Secretary sought clarification as to whether the CEO was accorded an opportunity to respond before nullification of his contract of service and neither the Ministry nor the Head of Public Service and Chief of Staff had been consulted.
Issue was also raised on the legality of the substitution of the contract with the previous one, a novation, which in law requires consent of all parties involved.
The Cabinet Secretary expressed dissatisfaction with the conduct of the board of directors on the matter.
Relatedly, a response from the Acting Inspector General (Corporations) was equally unpraising to the board of directors of the NHC, including exposing the organization to potential litigation and surcharge of the board of directors for loss to the NHC.
Similarly, the Chairmans’ attempt to blame the CEO for the actions of the board allegedly for lack of advice attracted a censure on account that members of the board of directors were duty board to familiarize themselves with the relevant laws, circulars and regulations in accord with their letters of appointment and could not blame the CEO.
According to the Petitioner, the foregoing notwithstanding, the petitioner was unlawfully in office for having engineered the contract dated 5th October 2023, which was not anchored on approved Human Resource instruments and deponed that the board’s resolution to nullify the contract was ‘corrective governance action.’
That the Respondent undermined, intimidated and frustrated the board and lobbed external offices to remain in office.
Accord to the petitioner, the contract under which the petitioner is serving was unlawful and void.
The issues for determination are;
(i) Whether the petition meets the threshold of a constitutional petition.
(ii) Whether the Respondent was holding a public office unlawful and under a avoid contract of service.
(iii) Whether the petitioner is entitled to the reliefs sought.
On the 1st issue, granted that the suit was filed as a constitutional petition, it was incumbent upon the petitioner to demonstrate with reasonable clarity and precision the provisions of the constitution alleged to have been violated, manner or nature of the violation or infringement and the extent of the violation as established in Anarita Karimi Njeru v Republic (1979) eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 others (2012) eKLR.
In the former, the court held:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”
In this case, although the petitioner cited Articles 2(1), 2, and (4), 10, 73 (1) (a) (b) and (2), 232(1) (g), (h) and (i), 47 and 201 of the Constitution of Kenya, Section 5(3) of the State Corporations Act, section 11 and 12 of the Leadership and Integrity Act, Clauses 1.7 and 1.9.5 of Mwongozo Code and unidentified circulars, and public service policy as allegedly violated the specific nature of the violation or infringement was unclear.
How and to extent were the provisions of Article 10(2) (a), (c) and (d), violated or 47, 201 or 232 (1) (g) (b) and (i) bearing in mind that the Respondent was an employee serving under a contract of service given by the board of directors of the NHC?
Howe did the Respondent act in contravention of Article 73 (1) (a) (b) and (2) of the Constitution of Kenya, yet he is not a State Officer?
Similarly, no particulars were provided to show how the Respondent violated Section 5(3) of the State Corporations Act which addresses engagement of staff including the C.E.O.
It is trite that it is the duty of the employer to provide the contract of service to the employee after the parties have agreed on the terms.
At common law, the employer is the offeror and the prospective employee the offeree, who is at liberty to accept the offer, seek clarification or reject it outrightly or by way of a counter offer.
Strangely, the petitioner appears to suggest that the Respondent gave himself the employment contract having made all decisions affecting his employment, which sounds absurd and is not supported by credible evidence.
That the Respondent was to blame for the absence of approval of his contract of employment and concurrence of Head of Public Service or the Ministry, which is not legally sustainable. It was patently the employer’s duty to ensure compliance with any attendant requirements.
Equally, the Leadership and Integrity Act applies to State Officers exclusively as encapsulated under section 3 of the Act. The petitioner adduced no evidence to prove that the respondent is a State Officer.
Finally, the petitioner alleged that the Respondent acted in breach of unidentified and unnamed executive circulars and public service policy. It is legally not possible for a person to be charged or be prosecuted for an unknown or non-existent offence or crime. None of the alleged circulars was identified by date, reference number or subject. There is no policy in Kenya styled as public service policy.
In sum, the instant petition does not meet the threshold of a constitutional petition and the suit ought to have been filed as an ordinary claim.
As to whether the Respondent’s stay in office was unlawful or the contract of service is void, the earlier part of this analysis adverted to the issue including the decisions made by the board of directors of the NHC, search for legal advice and the responses by the Cabinet Secretary and the Ag Inspector General (Corporations).
Briefly, when the board of directors of the NHC resolved to give the Respondent a new contract under the approved human resource instruments, it made an offer to him which he accepted it by appending his signature thereto. The board of the NHC signed the document too and henceforth legally binding agreement came into existence and the terms therein were the Respondents terms of engagement.
The absence of approval or concurrence by the Cabinet Secretary and/or the Head of Civil Service would not render a contract of service entered into by the NHC and its Managing Director void or unlawful.
In Rose & Frank Co.VJR Crompton & Bros Ltd (1923) 2 KB the court held
“To create a contract, there must be a common intention of the parties to enter into legal obligations mutually communicated expressly or impliedly.”
Under section 3 of the Housing Act, the NHC is a body corporate with perpetual succession and a common seal, with capacity to perform the duties and powers conferred on it by the Housing Act. Under Section 3(4) of the Act, the corporation has capacity to enter into contracts, hold and dispose of property and sue and be sued.
The NHC employed the Respondent through its directors under the original contract dated 15th September 2022 and the subsequent contract dated 5th October 2023 and both were legally enforceable. At any rate the petitioner did not lender any credible evidence to prove that the first or second contract was illegal or unlawful. There was no evidence to show that the agreement was vitiated by a mistake, misrepresentation, duress or undue influence or that its purpose or objective was unlawful.
The foregoing is fortified by the fact that the decision to give the Respondent another contract was made by the board of directors in the absence of the Respondent as he was conflicted, being its secretary and he unconditionally accepted the offer.
The earlier contract was terminated by the board of directors and the Respondent acquiesced to the termination and it was replaced by another, which both parties accepted and that remained the state of affairs until the board of directors for undisclosed reasons resolved to declare the Respondent’s contract of employment void, a power, they did not possess in law by dint of Section 10(5) of the Employment Act.
By purporting to declare void a contract of service entered into in 2023 in 2025, and unilaterally, the NHC board of directors was committing a repudiatory breach of the contract of employment. Since the decision affected the Respondent adversely, it was incumbent upon the NHC to hear the Respondent before the decision was made. Contrary to the petitioner’s averment, the boards resolution declaring the contract dated 5th October 2023 a nullity was not corrective action. The board was digging itself into a hole as exemplified by the responses of the Cabinet Secretary and the Ag Inspector General (Corporations).
Clearly, the board of directors of the NHC ventured into uncharted territory without the benefit of legal advice from the Office of the Attorney General and only did so after exposing itself to potential litigation.
Finally, it is trite law that once a contract is terminated it ceases to exist and cannot be resorted to as the board of directors of the NHC purported to do. It is also manifest that the board apprehended the folly of their action and sought legal advice from the Office of the Attorney General.
Having entered into a legally enforceable contract of service with the Respondent dated 5th October 2023, the board of the NHC had no option but await effluxion of its term or mutually agree with the Respondent to separate or end the relationship in any other manner it considered appropriate and bear the consequences.
This is because a contract of service is basically an enforceable agreement and is governed by the maxim of eodem modo quo oritur, eodem modo dissolvitur which literally means “it is discharged in the same manner in which it was created”
See Odungo v Okango t/a Jemery Energy (2025) KEHC 61807 (KLR).
For the foregoing reasons, it is the finding of this court that the contract of service entered into between the Respondent and the NHC was legally enforceable and the attempt to nullify the same by the board of directors of the NHC on 5th June 2025 had no legal effect.
Equally, the continued holding of public office by the Respondent is neither illegal nor unlawful.
The upshot of the foregoing findings is that the petition dated 7th January 2026 lacks merit, and it is accordingly dismissed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29th 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
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