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ELRCStruck OutNot stated in judgment· [2020] KEELRC 1487 (KLR)

Elizabeth Ominde & 5 others v Kakamega County Government & another [2020] KEELRC 1487 (KLR)

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

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County employees must appeal to the Public Service Commission first, or the Employment Court will strike out their suit.

What this practically means

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Executive summary

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The claimants, whose employment was terminated by the County Public Service Board by letters dated 19th October 2017 following disciplinary hearings, filed this suit on 21st February 2018 without appealing to the Public Service Commission within the ninety-day window notified in the termination letters. The Board raised a preliminary objection on the ground that the claimants had failed to exhaust the statutory appellate procedure under Section 77. The claimants countered that Section 77 was permissive, being capped with the word 'may', and that the Employment and Labour Relations Court has exclusive original jurisdiction over employment disputes. Relying on this court's own decision in Shem Okora Onywera v Kisii Government and the Court of Appeal's decision in County Public Service Board v Wajir County Government, the court held itself bound that the claimants were obliged to appeal to the Public Service Commission before approaching the court. It endorsed the Karume principle that where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed. Finding no good reason or exceptional circumstances justifying the bypassing of the statutory appellate mechanism, the court struck out the suit with no order as to costs.

Key legal issues

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01

Exhaustion of statutory appellate remedies under Section 77 before filing an employment suit

Holding

The claimants were bound to appeal to the Public Service Commission under Section 77 before approaching the ELRC; failure to do so rendered the suit premature and liable to be struck out

Reasoning

The court held itself bound by the Court of Appeal decision in County Public Service Board and another v Wajir County Government and another, which upheld the requirement to invoke the appellate procedure under Section 77 before resorting to judicial process. The claimants' argument that the word 'may' renders Section 77 permissive was rejected, as were their claims of exclusive ELRC jurisdiction, because no exceptional circumstances or good reason excused the bypassing of the statutory appellate mechanism.

p. 2

Legal principles established

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  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed

Court orders

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  1. 1.The suit is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Public Service ActSection 77
  • County Government ActSection 77

Cases cited (4)

  • Shem Okora Onywera vs Kisii Government and another
    (2018) eKLR
  • County Public Service Board and another vs Wajir County Government and another
    (2017) eKLR
  • Republic vs National Environment Management Authority
  • Speaker of the National Assembly vs James Njenga Karume
    Nairobi Civil Appeal No. 92 of 1992, (1992) eKLR
Jurisdiction invoked
Exclusive original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (invoked by the claimants; the court decided the suit on exhaustion of statutory remedies under Section 77 of the County Government Act, 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Elizabeth Ominde & 5 others v Kakamega County Government & another [2020] KEELRC 1487 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1487/eng@2020-02-27

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