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ELRCDismissed· [2019] KEELRC 2358 (KLR)

David Baariu Mwirabua & 2 others v Governor Meru County & another [2019] KEELRC 2358 (KLR)

Employment and Labour Relations Court
7 February 2019
NMNzioki wa Makau
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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County officers sent on compulsory leave lost their case because they went to court first instead of appealing to the Public Service Commission as Kenyan law requires.

What this practically means

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Executive summary

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Three former chief officers of Meru County Government sued the Governor and the County Public Service Board claiming they were employed on five-year terms commencing 1st October 2013 and ending 1st October 2018, at a monthly salary of Kshs. 260,660, with an entitlement to a CPF gratuity/pension scheme funded at 31% of basic salary. They complained that by a letter dated 21st August 2017 they were sent on indefinite compulsory leave ostensibly pending special finance and human resource audits, that their positions were then advertised, and that their salaries were stopped in January 2018 without notice. They sought declarations of breach of contract and unfair labour practices, salary for the balance of their contracts, exemplary damages, certificates of service, costs and interest. The Respondents contended that the Claimants' tenure was tied to the term of the former Governor, that they acquiesced in this, applied for the newly advertised chief officer positions, and were retained on a transitory basis pending recruitment of their successors. After hearing the 1st Claimant and the Respondents' witness and considering rival submissions, the court held that the suits were prematurely filed: under Section 77 of the County Governments Act, county public servants aggrieved by such decisions must appeal to the Public Service Commission, and that statutory mechanism is mandatory, leaving no discretion to bypass it by moving the court directly. Applying the decision in Shem Okora Onywera v Kisii County Government, the court dismissed all three suits, 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 suits were prematurely filed because the Claimants failed to appeal to the Public Service Commission as mandated by Section 77 of the County Governments Act, and the suits were therefore fit for dismissal

Reasoning

The court held that the Claimants, as county public servants aggrieved by the decisions of the Respondents, had a statutory duty to comply with Section 77 of the County Governments Act and appeal to the Public Service Commission. Relying on the decision in Shem Okora Onywera v Kisii County Government, the court found that where a statute provides a dispute resolution mechanism it must be strictly followed, and the provision grants no option to choose the court as an alternative forum.

p. 2
02

Duration and terms of the Claimants' employment contracts

Holding

The court did not make a definitive finding on the contractual term, noting that none of the Claimants had a signed contract of service and the payslips exhibited were proof of payment but not of the contract's duration

Reasoning

The court observed that none of the Claimants produced a contract of service, the payslips did not show contract duration, and no witness could authoritatively explain the meaning of 'ROD' on the payslips as the documents were generated centrally for all civil servants. The dispute over whether service ran to the Governor's term or to October 2018 was therefore not resolved on the merits, the suits having been dismissed for prematurity.

p. 2

Legal principles established

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  • Where a statute provides a mandatory dispute resolution mechanism for county public service disputes, it must be strictly followed before approaching the court; the Section 77 mechanism gives the aggrieved party no discretion to bypass the Public Service Commission

Court orders

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  1. 1.The 3 suits are dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • County Governments ActSection 45
  • County Governments ActSection 77
  • Employment ActSection 35

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
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (the Claimants filed suits directly before the court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "David Baariu Mwirabua & 2 others v Governor Meru County & another [2019] KEELRC 2358 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2358/eng@2019-02-07

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