David Githaka Gaichu & 129 others v Tharaka Nithi County Government & another [2019] KEELRC 235 (KLR)
The bottom line
#130 former village administrators lost their case because Kenyan law required them to appeal to the Public Service Commission before going to court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of statutory remedies
The Court held it lacked competence to entertain the claim because the Claimants were obliged to appeal to the Public Service Commission under Section 77 of the County Governments Act before coming to court
Section 77 of the County Governments Act provides that any person dissatisfied or affected by a decision of a County Public Service Board, including disciplinary control, may appeal to the Public Service Commission. The court held that litigants cannot choose what part of a statute to follow, and that the Claimants should have approached the Commission rather than filing suit in this Court. The suit was accordingly found unmerited and dismissed, with each party bearing their own costs.
Whether the termination of the Claimants' employment was fair, procedural and legal
Not conclusively determined; the claim was dismissed on the jurisdictional ground of failure to exhaust the statutory appeal mechanism
The Claimants argued they were denied a fair hearing and that no minutes or notice of hearing were produced, and that the employer had to prove reasons for termination under Section 43 of the Employment Act. The Respondents maintained that written and oral hearings were held and relied on Section 75 of the County Governments Act and Article 236 of the Constitution to justify correcting unlawful appointments. The court did not reach the merits, dismissing the suit on the jurisdictional objection.
Legal principles established
#- Where a statute provides a clear procedure for challenging a decision, that procedure must be followed; a litigant cannot bypass legislation and come directly to court
- A person dissatisfied with a decision of a County Public Service Board, including disciplinary control against a county public officer, must appeal to the Public Service Commission under Section 77 of the County Governments Act
Court orders
#- 1.The Claimants' suit is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; challenged by Respondents under Section 77 of the County Governments Act requiring appeal to the Public Service Commission
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Githaka Gaichu & 129 others v Tharaka Nithi County Government & another [2019] KEELRC 235 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/235/eng@2019-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.