Editor’s Note:
In a judgment that draws a hard line against arbitrary executive power by GovernorWavinyaNdeti, the Employment and Labour Relations Court Judge Stella Rutto ruled that the dismissal of Machakos County Executive Committee Member Philip Mutua Kilonzo was as unlawful, unfair, as it was unsupported by evidence.
The Court faulted the Governor for acting on unproven allegations, denying the claimant a fair hearing, and failing to disclose the evidence she relied upon before termination.
Published below is the full judgment reproduced verbatim, preserving the Court’s reasoning, findings, and orders in their entirety in our unfailing pursuit for public interest journalism
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS
CAUSE NO. E019 OF 2024
PHILIP MUTUA KILONZO- CLAIMANT
VERSUS
THE GOVERNOR, MACHAKOS COUNTY-1ST RESPONDENT
THE COUNTY GOVERNMENT OF MACHAKOS -2ND RESPONDENT
JUDGMENT
It is not contested that on 9th November 2022, the Claimant was appointed as the County Executive Committee Member for Land, Urban Development, Housing and Energy in the 2nd Respondent’s government and was thereafter redeployed to serve as the County Executive Committee Member for Education.
From the record, the Claimant’s tenure was relatively short, as the 1st Respondent terminated his appointment on 9th October 2023. The Claimant contends that the termination was effected without any justifiable reason and that he was denied an opportunity to be heard, as no disciplinary hearing was convened to allow him to present his defence.
In light of the foregoing, the Claimant seeks the following reliefs against the Respondents:
a. A declaration that the Claimant’s termination was unfair;
b. Twelve (12) months’ salary as compensation for unfair termination amounting to Kshs 4,851,000;
c. Six (6) months’ salary in lieu of notice amounting to Kshs 2,425,500;
d. Gratuity at 31% for the period served amounting to Kshs 1,503,810;
e. Unpaid leave days calculated at Kshs 282,975;
f. Costs of this suit;
g. Interest on (b), (c) and (e) at court rates;
h. Certificate of service; and
i. Any other order that this Honourable Court shall deem fit to grant.
In response to the claim, the Respondents assert that the rules of natural justice were observed and that the Claimant was afforded an opportunity to be heard and to respond to the allegations levelled against him before a decision was reached.
They maintain that the Claimant is not entitled to the reliefs sought and urge the Court to dismiss the suit with costs.
In his reply to the Memorandum of Response, the Claimant reaffirms the averments in his Statement of Claim and denies each allegation raised therein.
He maintains that the Respondents violated the rules of natural justice in dealing with him and asserts that his termination was unlawful.
Accordingly, he urges the Court to dismiss the Respondents’ response with costs and to grant the reliefs sought in the Statement of Claim.
The matter proceeded for hearing on 26th September 2025 and 31st October 2025, during which both sides called oral evidence in support of their respective cases.
Claimant’s Case
The Claimant testified in support of his case as CW1 and, at the outset, sought to adopt his witness statement as his evidence in chief.
He further produced the list and bundle of documents filed on his behalf as exhibits before the Court.
The Claimant testified that on 4th October 2023, the 1st Respondent issued him with a Notice to Show Cause, alleging that he had engaged in conduct detrimental to the 2nd Respondent’s mandate to serve the public.
He further stated that the 1st Respondent allowed him only three (3) days to respond to the Notice to Show Cause.
Despite the short timeline, he submitted a written response dated 6th October 2023, in which he categorically denied the allegations and addressed each of them with supporting evidence.
The Claimant added that by a letter dated 9th October 2023, the 1st Respondent terminated his employment as the County Executive Committee Member for Education, purportedly relying on his response and the evidence presented against him.
According to the Claimant, no meaningful consideration was given to either his response or the alleged evidence, noting that he received the Notice to Show Cause on a Wednesday, responded on Friday, and by the following Monday, his appointment had been terminated.
In his view, the process amounted to a political witch-hunt, as the outcome appeared predetermined.
The Claimant further asserted that he was never shown the evidence relied upon by the 1st Respondent and that no hearing was convened to allow him to properly defend himself.
He maintained that the grounds for termination were not explained to him, and that he was not afforded the right to have another employee of his own choice present during any explanation of the reasons for termination.
Respondents’ Case
The Respondents presented oral evidence through Dr. Victor Muya Ndambuki, who testified as RW1. Dr. Ndambuki, who identified himself as the County Secretary of the 2nd Respondent, equally relied on his witness statement as his evidence in chief and produced the Respondents’ list and bundle of documents as exhibits before the Court.
RW1 testified that the Claimant was issued with a Notice to Show Cause dated 4th October 2023, through which the 1st Respondent invited him to explain why he should not be dismissed.
According to RW1, the Claimant responded to the Notice to Show Cause and, upon considering both the allegations against him and his response, the 1st Respondent, by a letter dated 9th October 2023, proceeded to dismiss him from his position as a member of the County Executive Committee of the 2nd Respondent.
RW1 further stated that the Claimant had conducted himself in a manner incompatible with his role as a County Executive Committee Member, rendering it untenable, in the 1st Respondent’s view, for him to continue serving in that capacity.
RW1 maintained that the entire process leading to the Claimant’s dismissal was carried out in accordance with the law and adhered to the principles of natural justice.
He therefore urged the Court to dismiss the claim, asserting that due process had been followed.
Submissions
The Claimant submitted that the Notice to Show Cause provided no justifiable reasons or supporting evidence to counter his response, nor any valid explanation as to why his response was deemed unsatisfactory.
In support of this position, he cited the decision in Alex & 27 others v Nairobi City County Government & 3 others (2025) KEELRC.
The Claimant further argued that the Notice to Show Cause did not include any evidence to substantiate the allegations against him.
In this regard, he contended that by failing to provide supporting evidence, the Respondents’ allegations were baseless, fabricated, unfounded, and made in bad faith.
Relying on Ngagaya v Securitas Kenya Limited (Cause No. 1459 of 2017) [2025] KEELRC 1714 (KLR), the Claimant submitted that he was not afforded an opportunity to be heard in person, thereby violating his constitutional rights to a fair hearing and fair administrative action.
Citing Narok County Government & another v Richard Bwogo Birir & another [2015] eKLR, the Claimant argued that notwithstanding Section 31 of the County Governments Act, the 1st Respondent remained bound by statute and the Constitution and was therefore required to follow proper procedure when dismissing a County Executive Committee Member, as outlined in Section 40(2) of the Act.
The Claimant further contended that, on a balance of probabilities, he had proven that his termination was both substantively and procedurally unlawful and unfair.
On their part, the Respondents urged the Court to adopt the reasoning in County Government of Nyeri & another v Ndungu (2015) KECA 1011 (KLR), asserting that the County Governor retains the right to dismiss a County Executive Committee Member in the interests of service to the public, with the only considerations being reasonableness and adherence to the principles of fair administrative action. In the Respondents’ view, both tests were satisfied in this case.
The Respondents further cited Kinyua v Governor, Tharaka Nithi County & another; County Assembly of Tharaka Nithi & another (Interested Parties) [2025] KEELRC 2458 (KLR) and Nzioka v Lemoc Limited (Cause No. 495 of 2016) [2025] KEELRC 501 (KLR).
They maintained that they followed the prescribed procedure before terminating the Claimant’s employment and that the 1st Respondent acted within her lawful authority.
They further argued that a County Executive Committee Member is exempt from the Public Service Commission Discipline Manual, as such officers are not public service employees.
Analysis and Determination
Upon considering the parties’ pleadings, the evidence on record, and the rival submissions, the Court identifies the following issues for determination:
a. Whether the termination of the Claimant’s appointment as County Executive Committee Member was for a valid reason;
b. Whether the Claimant was afforded procedural fairness before the termination of his appointment; and
c. Whether the Claimant is entitled to the reliefs sought.
As the Court has determined that the reasons for terminating the Claimant’s appointment were not valid and compelling, the Court awards:
One (1) month’s salary in lieu of notice: Kshs 404,250.00
Compensatory damages equivalent to five (5) months’ salary: Kshs 2,021,250.00
Unpaid leave days: Kshs 282,975.00
Gratuity: Kshs 1,503,810.00
Total award: Kshs 4,212,285.00
Orders
A declaration is hereby issued that the termination of the Claimant’s appointment was unfair.
Judgment is entered in favour of the Claimant in the sum of Kshs 4,212,285.00.
Interest shall accrue at court rates from the date of judgment until payment in full.
The Claimant is awarded costs of the suit.
The Claimant is entitled to a Certificate of Service pursuant to Section 51(1) of the Employment Act, to be issued within fourteen (14) days.
DATED, SIGNED and DELIVERED at NAIROBI this 4th day of February 2026.
STELLA RUTTO
JUDGE
In the presence of:
For the Claimant: Mr. Wambua
For the Respondents: No appearance
Court Assistant: Catherine
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and pursuant to the directions issued by the Chief Justice on 15th March 2020 and 21st April 2020, this judgment has been delivered electronically. Compliance with Order 21 Rule 1 of the Civil Procedure Rules has been waived in accordance with Article 159(2)(d) of the Constitution, Article 48 of the Constitution, and Section 1B of the Civil Procedure Act.
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