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ELRCStruck OutNot stated in judgment· [2020] KEELRC 1138 (KLR)

Kennedy Ongiro Mogire v County Government of Kisii & 4 others [2020] KEELRC 1138 (KLR)

Employment and Labour Relations Court
13 May 2020
MNMathews N. Nduma
741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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County employees in Kenya must finish the internal appeal process before suing over dismissal, or the court will strike out the case.

What this practically means

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Executive summary

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The respondents raised a preliminary objection dated 6 July 2018 seeking to strike out the claimant's claim, filed on 12 April 2018 following his dismissal from the Kisii County Government on 13 December 2017. The respondents argued, relying on Section 87(2) of the Public Service Act and Section 77 of the County Governments Act, that the claimant was bound to exhaust the appeal procedure to the County Public Service Board and Public Service Commission before coming to court, and that the suit was therefore filed prematurely and the court lacked jurisdiction. The claimant had in fact lodged an appeal to the Secretary, County Public Service Board on 16 January 2018, but it had not been concluded by the time the suit was filed. The court applied the Court of Appeal decision in Secretary, County Public Service Board and another v Hulbhai Gedi Abdile (2017) eKLR, which held the Section 77 appeal process mandatory, and being bound by it, found that the claimant had not exhausted the appellate procedure. The suit was struck out for lack of jurisdiction as premature, with costs to the respondents. The court further cautioned, obiter, that if the exhaustion mandate is used to defeat the three-year limitation period under Section 90 of the Employment Act, the matter should be relooked. It also observed that only the County Public Service Board may discipline and dismiss county public servants, so it cannot be an appellate body over the County Human Resource Management Advisory Committee, whose decisions amount to 'purported exercise of disciplinary control' under Section 77; the County was cautioned to desist from misreading this. The ruling was delivered online pursuant to COVID-19 measures with the parties' consent.

Key legal issues

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01

Exhaustion of internal appeal remedies before filing suit

Holding

The claimant was bound to exhaust the appellate procedure under Section 87(2) of the Public Service Act and Section 77 of the County Governments Act before approaching the court; failure rendered the suit premature and the court without jurisdiction

Reasoning

The Court of Appeal in Secretary, County Public Service Board and another v Hulbhai Gedi Abdile held the appeal process under Section 77 mandatory. As a subordinate court bound by that decision, and since the claimant's appeal to the County Public Service Board had not been concluded when the suit was filed on 12 April 2018, the suit was premature and struck out.

p. 2
02

Nature of the disciplinary authority exercised over the claimant

Holding

The County Human Resource Management Advisory Committee's decision amounted to 'purported exercise of disciplinary control' under Section 77, and the County Public Service Board is not an appellate body over itself

Reasoning

The court observed that only the County Public Service Board may discipline and dismiss county public servants; it cannot sit as an appellate body over the Advisory Committee's decision, which falls within 'purported exercise of disciplinary control against any county public officer' under Section 77. The County was cautioned to desist from misreading this.

p. 2
03

Limitation concerns arising from mandatory internal procedures

Holding

Obiter: if exhaustion of internal procedure is used to defeat the three-year limitation period under Section 90 of the Employment Act, the matter should be relooked afresh

Reasoning

The court flagged a caution that the exhaustion doctrine should not be deployed in a way that erodes the three-year limitation period under Section 90 of the Employment Act, in which case the matter should be re-examined. This is obiter and did not affect the outcome.

p. 2

Legal principles established

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  • An appeal under Section 77 of the County Governments Act to the Public Service Commission is a mandatory process that must be exhausted before resort to court
  • Only the County Public Service Board has authority to discipline and dismiss county public servants; the County Human Resource Management Advisory Committee's exercise of disciplinary control is 'purported' disciplinary control

Court orders

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  1. 1.The suit was struck off for lack of jurisdiction as it was filed prematurely before exhaustion of the appellate procedure
  2. 2.Costs of the preliminary objection awarded to the respondents

Authorities

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Legislation

  • Public Service ActSection 87(2)
  • County Governments ActSection 77
  • Employment ActSection 90
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (1)

  • Secretary, County Public Service Board and another vs Hulbhai Gedi Abdile
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; respondents invoked Section 87(2) Public Service Act No. 10 of 2017 read with Section 77 of the County Governments Act No. 17 of 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, "Kennedy Ongiro Mogire v County Government of Kisii & 4 others [2020] KEELRC 1138 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1138/eng@2020-05-13

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