By BOB WASWANI
May 8, 2026| A Kakamega court has stopped a lower court from forcing the Vihiga County Government to keep a dismissed chief officer on its payroll, ruling that the magistrate who issued the orders may have overstepped his mandate.
The Employment and Labour Relations Court was told that Mary Jemaiyo Mbiti, the former Chief Officer for Gender, Culture and Social Services, was fired in July 2025 for gross misconduct. She appealed to the Public Service Commission, but while that appeal was still pending, she ran to the Chief Magistrate’s Court in Kakamega and obtained injunctive orders.
On 14th August 2025, Principal Magistrate J. J. Masiga restrained the county from filling her former position or removing her from the payroll. Those orders were issued without the county government getting a chance to respond.
The county secretary and the Vihiga County Public Service Board were not amused. They appealed, arguing that the magistrate had acted without jurisdiction. They said the proper place for Mbiti to seek any interim relief was the Public Service Commission itself, not a magistrates’ court.
In his ruling delivered on 5th May 2026, Judge David Nderitu agreed that the appeal raised serious questions that cannot be ignored.
“The appeal herein prima facie raises serious and fundamental issues that deserve a hearing and determination,” the judge said. He specifically pointed to “the issues raised on jurisdiction and abuse of the doctrine of exhaustion,” which he said “call for serious consideration and determination.”
The judge also noted that Mbiti had no good explanation for filing her case in Kakamega when Vihiga County has its own magistrates’ courts in Hamisi and Vihiga town. “There is also no explanation coming from the respondent as to why the matter was filed in Kakamega and not at Vihiga or Hamisi Law Courts,” he observed.
The county government had also argued that the magistrate’s orders violated Order 29 Rule 2(2)(d) of the Civil Procedure Rules, which prohibits issuing injunctions against the government. But the judge did not need to go that far. He found that the appeal had enough merit to justify hitting pause on the lower court’s orders.
“Pending the hearing and determination of the appeal, the orders issued by Hon. J. J. Masiga (PM) issued in Kakamega CMELRC Misc. Application No. E001 of 2025 dated 14th August 2025 are hereby stayed,” Judge Nderitu ruled.
He added that the costs of the application would be in the appeal.
The ruling effectively means that for now, the county is free to proceed with recruiting Mbiti’s replacement while the legal battle continues. It also serves as a warning to litigants who try to bypass the Public Service Commission and rush to court. The judge made it clear that the doctrine of exhaustion—the legal principle that requires people to first use available administrative remedies before running to court—is not something magistrates can simply ignore.
The main appeal is still pending, and it remains to be seen whether the magistrate’s orders will ultimately be upheld or thrown out entirely. But for now, the county government has the upper hand.