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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 696 (KLR)

Philemon Mboye Kachila v County Public Service Board of Taita Taveta & another [2016] KEELRC 696 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 September 2016
OMONESMUS MAKAU
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan county officer can take an employment dispute straight to the Employment and Labour Relations Court without first appealing to the Public Service Commission.

What this practically means

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Executive summary

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The claimant, employed by the respondents on 3 February 2014 as County Chief Officer for Public Works and Infrastructure under a four-year term contract, was interdicted on 10 February 2016 for alleged misconduct and asked to show cause within 21 days. Three months after responding, with no further word from the respondents, he sued seeking declarations that the disciplinary process breached his legitimate expectation and was unfair, unlawful and unconstitutional, an order lifting the interdiction, reinstatement with full salary and benefits, and constitutional damages. The respondents denied liability, invoking the PSC Discipline Manual 2008, and raised a four-ground preliminary objection: incompetence of the Notice of Motion under Rule 16(3) of the Industrial Court Procedure Rules; prematurity under Article 234(2) of the Constitution and section 77 of the County Governments Act; immunity of the quasi-judicial disciplinary body; and violation of subsidiarity. The court agreed with the respondents only on the first ground, holding that an interlocutory injunction cannot be granted where it is not a prayer in the main suit, and struck out the Notice of Motion. On exhaustion, the court held that Article 234 and section 77 create only an optional avenue of appeal to the PSC, which does not extinguish the court's exclusive employment jurisdiction under Articles 162 and 165(5) and section 12 of the Employment and Labour Relations Act. Having struck out the Motion, the court eschewed determining the remaining grounds. The preliminary objection was allowed only to that extent, the main suit to proceed to full hearing, with each party bearing their own costs.

Key legal issues

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01

Competence of the Notice of Motion under Rule 16(3) ICPR

Holding

The Motion seeking interlocutory injunction was incompetent and struck out because the injunction was not sought as a relief in the main suit.

Reasoning

The court observed that the suit contains a prayer for injunction but the Notice of Motion sought an injunction pending the hearing and determination of the suit. Rule 16(3) of the ICPR disqualifies interlocutory injunctions not sought as a relief in the main suit. The court therefore found and held the Motion incompetent and struck it out, while leaving the main suit alive.

p. 3
02

Whether the suit is premature for failure to exhaust the PSC appeal mechanism

Holding

The suit is properly before the court; the PSC appeal route under Article 234 and section 77 of the County Governments Act is an option, not a mandatory prerequisite.

Reasoning

Article 234(2) of the Constitution and section 77 of the County Governments Act allow appeals to the PSC, but nothing in those provisions extinguishes or adjourns the court's exclusive jurisdiction under Articles 162 and 165(5) of the Constitution and section 12 of the Employment and Labour Relations Act. The PSC route yields a limited range of reliefs compared to the express reliefs the court can grant, so a duality of procedural avenues exists and the precedents requiring exhaustion were not relevant.

p. 4

Legal principles established

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  • The Industrial Court's exclusive jurisdiction over employment disputes is not extinguished by the PSC appeal mechanism under Article 234 and section 77 of the County Governments Act; a county public officer has a duality of procedural avenues.
  • Interlocutory relief cannot be granted where the relief sought in the application is not sought in the main suit, per Rule 16(3) of the Industrial Court Procedure Rules.

Court orders

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  1. 1.The Notice of Motion dated 30.5.2016 is struck out for being incompetent
  2. 2.The main suit to proceed to hearing and determination on merits
  3. 3.Each party to bear his or her own costs
Jurisdiction invoked
Articles 162 and 165(5) of the Constitution and section 12 of the Employment and Labour Relations Act

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, "Philemon Mboye Kachila v County Public Service Board of Taita Taveta & another [2016] KEELRC 696 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/696/eng@2016-09-09

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