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ELRCDismissedNot stated in judgment· [2019] KEELRC 2258 (KLR)

Patrick Koome Mutiga & 22 others v Meru County Government & another [2019] KEELRC 2258 (KLR)

Employment and Labour Relations Court
22 January 2019
NMNzioki wa Makau
1,704 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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County government job disputes in Kenya must first go to the Public Service Commission under Section 77 before you can sue in the Employment Court.

What this practically means

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Executive summary

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The Claimants, recruited by the 1st Respondent county government's department of health and issued with appointment letters dated July/August 2017 for deployment on 1 September 2017, sued after they were never deployed. They alleged the non-deployment was an unfair labour practice driven by a scheme of the current regime and sought a declaration to that effect, an order compelling deployment per their appointment letters, payment of withheld salaries backdated to 30 September 2017, costs and interest. The Respondents opposed, relying on a cabinet communiqué of 22 May 2017 freezing employment ahead of the August 2017 general elections, the Claimants' delay in accepting the offers, absence of budgetary allocation, and the pendency of parallel proceedings before the County Assembly of Meru. Both parties testified through representatives. The court found that the recruitment occurred during the employment moratorium and without budgetary provision, describing the appointments as a comedy of errors of the Respondents' own creation. However, applying Section 77 of the County Governments Act as construed in Onywera v Kisii County, the court held that disputes arising out of county service board appointments must be appealed to the Public Service Commission, and that the Claimants had no discretion to bypass that mandatory mechanism. The suit was therefore dismissed as premature, with each party bearing their own costs because the Respondents' own conduct created the mess.

Key legal issues

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01

Exhaustion of the Section 77 appeal mechanism

Holding

The suit was filed prematurely; the Claimants ought to have appealed to the Public Service Commission under Section 77 of the County Governments Act before coming to court

Reasoning

The court adopted Nduma J's reasoning in Onywera v Kisii County that Section 77 evinces an intention that all disputes arising from county service board appointments be dealt with by the Public Service Commission in mandatory terms. There is no discretion to elect the court as an alternative forum, so the claim was prematurely before the ELRC and fit only for dismissal.

p. 3
02

Validity of appointments made during the employment freeze

Holding

The appointments were made despite a moratorium on employment preceding the August 2017 elections and without budgetary allocation, a 'comedy of errors' created by the Respondents

Reasoning

The court found the hire took place during a cabinet-imposed freeze communicated on 22 May 2017, with no budgetary allocation for the new staff. Although this irregularity was of the Respondents' own making, the court did not grant deployment, instead dismissing the suit for prematurity while denying the Respondents costs.

p. 3

Legal principles established

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  • Where a statute provides a mandatory dispute resolution mechanism, an aggrieved party must exhaust it before moving the court; Section 77 of the County Governments Act requires appeals to the Public Service Commission over county service board appointments with no option to bypass it

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes, under the Employment and Labour Relations Court Act and 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, "Patrick Koome Mutiga & 22 others v Meru County Government & another [2019] KEELRC 2258 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2258/eng@2019-01-22

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