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ELRCStruck OutConstitutional Petition No 5 of 2019· [2019] KEELRC 1550 (KLR)

Thuranira Salesio Mutuma v County Public Service Board & 2 others [2019] KEELRC 1550 (KLR)

Employment and Labour Relations Court
30 May 2019
NMNzioki wa Makau
3,065 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a petition filed for 291 county casual workers because the lawyer never filed their written authority with the suit.

What this practically means

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Executive summary

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The Petitioner, Selesio Thuranira Mutuma, filed a petition on 8th May 2019 seeking to enforce the rights of 291 casual workers of the 1st Respondent whom he alleged had been made to execute service contracts, claiming infringement of fair labour practices under Article 41 of the Constitution. Before the hearing of the Petitioner's Notice of Motion, the 1st, 2nd and 3rd Respondents raised a preliminary objection on two limbs: first, that the court lacked jurisdiction under Section 77 of the County Governments Act, 2012 because an aggrieved party should appeal to the Public Service Commission; secondly, that the Petition was fatally defective for misjoinder and non-joinder because the Petitioner sued on behalf of 291 workers without filed written authority. Counsel for the Respondents relied on the Court of Appeal decision in Secretary, Wajir County Public Service Board v Hulbal Gedi Abdille and on Rika J.'s decision in Kenya County Government Workers Union v County Government of Tana River. The Petitioner relied on Abdikadir Suleiman v County Government of Isiolo (Ongaya J.), arguing Section 77 is discretionary and the court retains jurisdiction over constitutional violations. The court agreed that appeals to the PSC are discretionary and that the alleged constitutional violations brought the Petition within its jurisdiction, disposing of the first limb. However, on the second limb the court, following Rika J., held that the Petitioner could not obtain authority after filing and that the absence of authority rendered the Petition fundamentally flawed for non-joinder. The Petition was struck out with costs to the Respondents.

Key legal issues

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01

Whether Section 77 of the County Governments Act ousts the court's jurisdiction where no appeal was preferred to the PSC

Holding

The court has jurisdiction because the Petitioner alleged constitutional violations which only the superior courts can enforce; appeals to the PSC are discretionary

Reasoning

Relying on Ongaya J.'s decision in Abdikadir Suleiman, the court held that Section 77 does not oust the court's jurisdiction over questions of constitutional legitimacy and lawfulness of county decisions. The PSC on appeal can only make decisions the County Public Service Board could have made; issues of constitutional propriety are for the court. The articulated violations place the Petition within the court's jurisdiction, though this is no licence to short-circuit statutory dispute mechanisms.

p. 3
02

Whether the Petition is defective for misjoinder and non-joinder for want of authority from the 291 workers

Holding

Yes - the Petition is fundamentally flawed for non-joinder and struck out

Reasoning

Following Rika J. in Kenya County Government Workers Union v County Government of Tana River, the court found difficulty in understanding on whose behalf the suit was brought. The Petitioner sued for 291 casual workers without filing their written authority with the Petition, and authority cannot be supplied after filing. The absence of authority rendered the Petition fatally defective.

p. 3

Legal principles established

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  • Appeals to the Public Service Commission under Section 77 of the County Governments Act are discretionary, and the court retains jurisdiction over constitutional violations notwithstanding that section
  • Authority to sue on behalf of others cannot be obtained after the suit is filed; absence of such authority renders the petition fatally defective for non-joinder

Court orders

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  1. 1.The Petition is struck out
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • County Governments Act, 2012Section 77
  • County Governments Act, 2012Section 76
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(5) and (6)
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Article 234(2)(i)
  • Employment and Labour Relations Act, 2011Section 12

Cases cited (4)

  • Secretary, Wajir County Public Service Board v Hulbal Gedi Abdille
    [2017] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
  • Kenya County Government Workers Union v County Government of Tana River & Another
    [2018] eKLR
  • Abdikadir Suleiman v County Government of Isiolo
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(a) as read with Article 165(5) and (6) of the Constitution; Article 22(1); section 12 of the Employment and Labour Relations Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Thuranira Salesio Mutuma v County Public Service Board & 2 others [2019] KEELRC 1550 (KLR)", Case Analysis (2019). Constitutional Petition No 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1550/eng@2019-05-30

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