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ELRCStruck OutNot stated in judgment· [2019] KEELRC 2045 (KLR)

Jessica Wanja Kinyua v County Government Of Machakos [2019] KEELRC 2045 (KLR)

Employment and Labour Relations Court
26 February 2019
HWHELLEN WASILWA
553 words in judgment
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The bottom line

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Suing a Kenyan county government over an employment dispute? You should sue the County Public Service Board, not the county government itself, or your case risks being struck out.

What this practically means

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court determined the Respondent's Notice of Preliminary Objection dated 23rd March 2016 in an employment claim brought against the County Government of Machakos. The objection raised three grounds: that the Respondent was not the proper party by virtue of Section 57 of the County Governments Act, 2012; that Section 77 of the same Act prescribed the right forum for the Claimant's grievances, which procedure had been violated; and that the suit was incompetent, bad in law, improperly filed and an abuse of the court's process. Parties agreed to dispose of the objection by written submissions; the Respondent filed submissions but the Claimant filed none despite being directed to be served. The Respondent argued that the County Public Service Board, established under Part VII of the Act as the body responsible for hiring and firing county staff and with capacity to sue and be sued, was the proper party, and that a Claimant dissatisfied with a Board decision must appeal to the Public Service Commission under Section 77. Counsel relied on Luka Angaiya Lubwayo, which in turn relied on the International Centre for Policy and Conflict and Speaker of National Assembly vs. Njenga Karume authorities to the effect that unlimited jurisdiction cannot be invoked where Parliament has expressly prescribed grievance procedures. The court agreed that the Respondent was improperly sued, upheld the preliminary objection and struck the Respondent out of the proceedings. No costs order was recorded. The decision was delivered by Hon. Lady Justice Hellen Wasilwa on 26th February 2019.

Key legal issues

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01

Whether the County Government of Machakos is the proper party to employment proceedings

Holding

It is not; the County Public Service Board is the proper party.

Reasoning

The court found that Part VII of the County Governments Act 2012 establishes the County Public Service Board with capacity to sue and be sued, and that its functions include hiring and firing of county staff. The Respondent denied ever employing the Claimant. The court agreed the Respondent was improperly sued and upheld the preliminary objection, striking out the Respondent.

p. 2
02

Whether a statutory grievance procedure must be followed before invoking the Court's jurisdiction

Holding

The court accepted counsel's submission that where Parliament has specifically prescribed procedures for handling grievances, those procedures must be used.

Reasoning

The court considered the Respondent's reliance on Luka Angaiya Lubwayo and related authorities holding that unlimited jurisdiction cannot be invoked where Parliament has expressly prescribed procedures for handling grievances, and that appeals from County Public Service Board decisions lie to the Public Service Commission under Section 77 of the Act.

p. 1

Legal principles established

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  • Where a statute establishes a body with capacity to sue and be sued and assigns it functions such as hiring and firing of staff, that body and not the county government is the proper party to employment proceedings.

Court orders

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  1. 1.The Respondent (County Government of Machakos) is struck out from these proceedings

Authorities

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Legislation

  • County Governments ActSection 57
  • County Governments ActSection 77
  • County Governments ActPart VII

Cases cited (3)

  • Luka Angaiya Lubwayo vs. Another vs. Gerald Otieno Kajwang & Another
    [2013] eKLR
  • International Centre for Policy and Conflict & 4 Others vs. the Hon. Uhuru Kenyatta & Others
    Petition No. 552 of 2012
  • Speaker of National Assembly vs. Njenga Karume
    [2008] 1 KLR 425
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; Preliminary Objection grounded on Sections 57 and 77 of the County Governments Act, 2012

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, "Jessica Wanja Kinyua v County Government Of Machakos [2019] KEELRC 2045 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2045/eng@2019-02-26

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