James Ouru Oroko v Kisii County Government [2020] KEELRC 1139 (KLR)

Section 87(2) of the Public Service Act prohibits filing legal proceedings on matters within the Public Service Commission's appellate jurisdiction over county public service unless the statutory procedure is exhausted. Section 77 of the County Governments Act provides the appeal mechanism to the Commission for persons aggrieved by disciplinary control. The claimant neither appealed to the Commission nor as erroneously advised by the County Secretary, and being a senior public servant, could not claim ignorance. The Court of Appeal decision in the Hulbhan Gedi Abdille case bound the court.

The dismissal letter advised the claimant to appeal to the Secretary, County Public Service Board of Kisii within 42 days, a procedure the court described as non-existent. However, the claimant did not appeal as advised nor did he appeal to the Public Service Commission. As a senior public servant who had voluntarily resigned to vie for an elective post, he could not be presumed ignorant of the law, the maxim being that ignorance of the law is no defence.

Following its own decision in Shem Okora Onywera vs Kisii County Government (2018) eKLR and the Court of Appeal in Secretary, County Public Service Board and another vs Hulbhan Gedi Abdille (2017) eKLR, the court held that the Section 77 appellate mechanism is the specialized, first-instance forum for grievances arising from disciplinary control against county public officers, and a suit brought in disregard of that mechanism is filed prematurely and must fail.