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Court of AppealDismissedCivil Appeal E242 of 2021· [2022] KECA 1366 (KLR)

Omolo v County Government of Kisumu & 4 others

Court of Appeal
2 December 2022
4,817 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a county employee's appeal because he skipped the required internal appeal process before going to court.

What this practically means

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Executive summary

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The Court of Appeal (Tuiyott, JA writing; Kiage and Mumbi Ngugi, JJA concurring) dismissed the appellant's first appeal against Radido, J's dismissal of his ELRC constitutional petition. Appointed Kisumu County Attorney in February 2017, the appellant was sent on compulsory leave in October 2017 and issued a notice to show cause over his conduct in two sets of litigation against the County. He petitioned the ELRC seeking declarations, certiorari, mandamus, reinstatement, damages and an injunction, later amending to challenge the constitutionality of the Kisumu County Office of the County Attorney Act, 2018. He declined to attend a disciplinary hearing before the County Public Service Board, which recommended termination for gross misconduct. The appellate court held that the appellant had not exhausted the appeal mechanism to the Public Service Commission under Section 77 of the County Governments Act before rushing to the ELRC; his claim of exoneration by the Board was unsupported, the Oyuga recommendation letter being a general reference requested by the appellant himself. The court affirmed that a constitutional petition may seek certiorari and mandamus under Articles 22 and 23(3), but held that multifaceted claims do not confer jurisdiction. The constitutional challenge to the County Attorney Act failed for want of ripeness, as its Section 29 transitional provision was never invoked against the appellant, whose termination was instead recommended for gross misconduct. The appeal was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Exhaustion of the Section 77 County Governments Act appeal mechanism

Holding

The appellant did not exhaust the statutory appeal avenue to the Public Service Commission before filing the constitutional petition; his claim of exoneration by the Service Board was unsupported by evidence.

Reasoning

The court examined the Oyuga affidavit and the 27 August 2018 recommendation letter, finding the letter was a general reference requested by the appellant for job seeking, not proof of a disciplinary hearing on the specific NTSC allegations. The appellant's advocates' letter of 30 December 2019 admitted the dispute was unresolved. His non-attendance at the 9 January 2020 disciplinary hearing left the grievance unexhausted.

p. 7
02

Whether a constitutional petition may seek certiorari and mandamus

Holding

Yes; Article 23(3) is an open-ended list permitting judicial review orders in constitutional petitions.

Reasoning

The court rejected the respondents' argument that judicial review orders could not issue in a constitutional petition, holding that Article 23(3) spells out but does not close the list of available reliefs, and cited authority affirming the conflation of constitutional and judicial review remedies.

p. 8
03

Constitutionality of the Kisumu County Office of the County Attorney Act, 2018

Holding

The challenge failed for want of ripeness; the impugned Section 29 transitional provision was never invoked against the appellant, whose termination was instead recommended for gross misconduct.

Reasoning

It was common ground that the Service Board recommended termination on account of the appellant's unanswered conduct regarding two sets of litigation, not under the new statute. With no deployment of the impugned provisions, there was no live controversy; courts should not spend scarce judicial time on moot questions.

04

Multifaceted petitions and jurisdiction

Holding

Inclusion of a facet the ELRC could entertain does not confer jurisdiction over the whole petition where other facets required prior exhaustion before another forum.

Reasoning

The court adopted the Kibos Distillers principle that multifaceted claims are not a recognised mode of conferring jurisdiction, creating the unhappy situation where the ELRC had jurisdiction over the constitutional challenge but lacked first-instance jurisdiction over matters requiring exhaustion under Section 77.

p. 8

Legal principles established

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  • A party must exhaust the appellate dispute resolution mechanism under Section 77 of the County Governments Act before resorting to the ELRC for relief over county public service disciplinary decisions.
  • A court cannot assume original jurisdiction merely because a petition contains multifaceted claims, some of which it could entertain.
  • A constitutional petition may properly seek judicial review remedies of certiorari and mandamus under Articles 22 and 23(3) of the Constitution.
  • Courts should not determine constitutional questions absent a live, ripened controversy; moot or academic questions will be declined.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • County Governments ActSection 77
  • County Governments ActSection 60
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47(2)
  • Constitution of KenyaArticle 22
  • Constitution of KenyaArticle 23(3)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 232
  • Constitution of KenyaArticle 50
  • Kisumu County Office of the County Attorney Act, 2018Section 29

Cases cited (7)

  • County Public Service Board and Another v Hulbhan Gedi Abdille
    [2017] eKLR

    Failure to exhaust Section 77 County Governments Act dispute resolution mechanism before resorting to judicial process.

  • Child Welfare Society of Kenya v Republic & 2 others Ex-parte Child in Family Focus Kenya
    [2017] eKLR

    Right of a constitutional petitioner to seek judicial review reliefs under Articles 22 and 23.

  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR

    Multifaceted claims are not a recognised mode of conferring jurisdiction.

  • Attorney-General & 2 others v Ndii & 79 others; Prof Rosalind Dixon & 7 others (Amici Curiae)
    [2022] KESC 8 (KLR)

    Doctrine of ripeness; courts should not decide hypothetical, non-justiciable controversies.

  • Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others
    Pet. 14A, 14B & 14C of 2014 of [2014] eKLR

    Courts should not determine academic or moot questions.

  • Doris Ombara v County Government of Kisumu
    E&LRC Petition No. 39 of 2016

    Underlying litigation forming basis of disciplinary allegations.

  • Ken Pundo & Co. Advocates v County Government of Kisumu & 3 others
    Kisumu HCMC No. 104-195 of 2015

    Underlying litigation forming basis of disciplinary allegations.

On appeal from
Employment and Labour Relations Court at Kisumu
Kisumu ELRC Petition No. 42 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal from the ELRC (Article 164(1)(a) of the Constitution; appeal from the Judgment and Decree of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omolo v County Government of Kisumu & 4 others", Case Analysis (2022). Civil Appeal E242 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1366/eng@2022-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.