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ELRCDismissedNot stated in judgment· [2019] KEELRC 2319 (KLR)

Severino Kinge Manene v Governor Meru County & another [2019] KEELRC 2319 (KLR)

Employment and Labour Relations Court
7 February 2019
NMNzioki wa Makau
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A sacked Meru County chief officer lost his case because he sued the court first instead of appealing to the Public Service Commission as the law requires.

What this practically means

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Executive summary

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The Claimant, a former chief officer for agriculture and livestock with the 2nd Respondent, seconded from what is present day Kirinyaga County, sued after being sent on indefinite compulsory leave by the 1st Respondent (the Governor) in August 2017 ostensibly pending special finance and human resource audits. His salary was stopped from February 2018 and the chief officer positions were subsequently advertised. He alleged breach of his five-year contract dated 25th September 2013 (to run to 1st October 2018), unfair labour practices and discrimination, and sought salary for the balance of the contract, exemplary damages, a certificate of service, costs and interest. The Respondents contended his tenure was tied to that of the former Governor, that he acquiesced in his release back to the Ministry of Agriculture, and that the suit was actuated by malice. Both parties testified and filed submissions, the Claimant citing authorities on mandatory pre-termination procedures and the Respondents on statutory termination notice and contractual interpretation. The court, however, did not reach the merits. Applying Section 77 of the County Governments Act and following Shem Okora Onywera v Kisii County Government, Nzioki wa Makau J held that the Claimant, a county public officer, was bound to appeal to the Public Service Commission, a statutory imperative leaving no discretion to bypass it. The suit was dismissed as prematurely filed, with each party bearing their own costs.

Key legal issues

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01

Exhaustion of the statutory dispute resolution mechanism under Section 77 of the County Governments Act

Holding

The Claimant, a county public officer aggrieved by decisions of the Respondents, was obliged to appeal to the Public Service Commission under Section 77 of the County Governments Act before approaching the court; having failed to do so, the suit was prematurely filed and had to be dismissed.

Reasoning

The court held that Section 77 of the County Governments Act applies to the Claimant, who was on secondment and a person to whom the Public Service Act and the County Governments Act applied in full. Relying on Shem Okora Onywera v Kisii County Government, the court held that where a statute provides a dispute resolution mechanism it must be strictly followed. The section grants the Public Service Commission the mandate to entertain appeals in mandatory terms, leaving no discretion to the aggrieved party to bypass it and move the court directly.

p. 3

Legal principles established

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  • Where a statute provides a mandatory dispute resolution mechanism, an aggrieved party must strictly follow it before moving the court; failure to exhaust renders the suit premature and fit for dismissal.

Court orders

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  1. 1.Dismissal of the Claimant's suit for being prematurely filed without exhausting the mandatory appeal mechanism under Section 77 of the County Governments Act
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • County Governments ActSection 77
  • County Governments ActSection 45
  • Employment ActSection 35
  • Public Service ActNot specified

Cases cited (7)

  • Kisumu County Public Service Board & Another v Samuel Okuro & 7 Others
    [2018] eKLR
  • Janine Buss v Gems Cambridge International School Limited
    [2016] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] eKLR
  • James Kiburi Mutia v Governor Meru County & Another
    [2018] eKLR
  • Eldo City Limited v Corn Products Kenya Ltd & Another
    [2013] eKLR
  • Feba Radio (Kenya) Limited t/a Feba Radio v Ikiyu Enterprises Limited
    [2017] eKLR
  • Shem Okora Onywera v Kisii County Government & Another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; dispute resolution mechanism under Section 77 of the County Governments 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, "Severino Kinge Manene v Governor Meru County & another [2019] KEELRC 2319 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2319/eng@2019-02-07

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