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ELRCDismissedNot stated in judgment· [2016] KEELRC 693 (KLR)

Scholastica Okwaro v Taita Taveta County Government [2016] KEELRC 693 (KLR)

Employment and Labour Relations Court
9 September 2016
OMO. Makau
1,334 words in judgment
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The bottom line

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A Kenyan county employee can sue directly in the Employment Court — appealing to the Public Service Commission is optional, not mandatory.

What this practically means

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Executive summary

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The claimant, an employee of a county government, sued on 21 January 2016 challenging the termination of employment, seeking a declaration that the termination was unlawful, reinstatement, payment of salary and allowances of Kshs 1,655,200, salary for the period between termination and reinstatement, and costs. The respondent filed a Notice of Preliminary Objection dated 12 May 2016 contending that the Court lacked jurisdiction, arguing that under section 77(2) of the County Governments Act and Article 234 of the Constitution, a dissatisfied county government employee must appeal to the Public Service Commission rather than sue directly in the ELRC. The respondent relied on the National Assembly v James Njenga Karume decision on strict adherence to prescribed procedures and the Tunai Mrete case on the absence of an option to bypass the PSC. The claimant countered that under Article 162(2) of the Constitution and section 12 of the ELRC Act, the Court has exclusive original and appellate jurisdiction over employment disputes, that the suit was brought under the Employment Act which does not route such disputes to the PSC, and that the cited precedents were distinguishable. Holding that jurisdiction is donated by the Constitution and statute, the court found the claim squarely within section 12 of the ELRC Act, noted that the three-year reinstatement window had not lapsed, and held that Article 234 and section 77(2) CGA merely provide an optional appeal route to the PSC that does not oust the Court's jurisdiction, a county government being an employer under section 3 of the Employment Act. The preliminary objection was dismissed with costs to the claimant on 9 September 2016.

Key legal issues

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Whether the ELRC has original jurisdiction over a claim by a county government employee challenging termination, notwithstanding the appeal route to the Public Service Commission under section 77(2) of the County Governments Act and Article 234 of the Constitution.

Holding

The Court has jurisdiction; the PSC route is optional and does not oust or adjourn the Court's jurisdiction.

Reasoning

The Court's jurisdiction derives from Article 162(2)(a) and 165(5) of the Constitution and section 12 of the ELRC Act, which confers exclusive original and appellate jurisdiction over disputes arising out of employment between employer and employee, including declaratory orders, damages and reinstatement within three years. The claim fits squarely within section 12: it is an employer-employee dispute over termination, relief sought is provided for, and three years had not lapsed. Nothing in Article 234 or section 77 CGA takes away or adjourns this jurisdiction; the PSC avenue is merely an option. Under section 3 of the Employment Act, a county government is an employer like any other.

p. 3

Legal principles established

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  • Article 234 of the Constitution and section 77(2) of the County Governments Act provide only an optional route of appeal to the Public Service Commission and do not oust the ELRC's jurisdiction over employment disputes between county governments and their employees.
  • A county government is an employer under section 3 of the Employment Act unless excluded under section 3(2) and (4).

Court orders

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  1. 1.The Notice of Preliminary Objection dated 12.5.2016 is dismissed with costs to the claimant.

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a), 165(5), 234
  • County Governments Actsection 77(2)
  • Employment and Labour Relations Court Actsection 12
  • Employment Act 2007sections 3(1) and (2), 41, 43, 45, 49

Cases cited (3)

  • National Assembly vs Hon. James Njenga Karume
    (2008) I KLR (EP)
  • James Tunai Mrete & Others vs County Government of Kajiado & 22 Others
    (2014) eKLR
  • Philemon Mboya Kachila vs Board of Taita Taveta and Another
    SLRCC 428 of 2016
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution of Kenya; section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Scholastica Okwaro v Taita Taveta County Government [2016] KEELRC 693 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/693/eng@2016-09-09

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