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ELRCDismissedELRC Petition (Kisumu) - Amended Petition filed 26th May 2021· [2021] KEELRC 263 (KLR)

Amos William Omollo v County Government of Kisumu, Governor, Kisumu County, County Secretary, Kisumu County & Chairman, County Public Service Board (Petition 42 of 2017) [2021] KEELRC 263 (KLR)

Employment and Labour Relations Court

2 December 2021

RSRadido Stephen, MCIARB

1,734 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A dismissed county official lost his case because he went to court before using the required Public Service Commission appeal process first.

What this practically means

Executive summary

The Petitioner, formerly County Attorney of the County Government of Kisumu, was sent on compulsory leave in October 2017 pending investigations and later received a show-cause letter. He moved the ELRC alleging infringement of Articles 41 and 47, and in his Amended Petition sought declarations that the compulsory leave and the termination of 15th February 2020 were null and void, certiorari to quash the compulsory leave, show-cause and termination letters, mandamus compelling reinstatement, damages, an injunction against further disciplinary action, and orders touching on the legality of his appointment and of the Kisumu County Office of the County Attorney Act, 2018. The Respondents' initial Response of 10th November 2017 remained on record. The Court held the Petition was not undefended, and that the gravamen of the dispute fell within the first-instance and appellate jurisdiction of the Public Service Commission under Article 234(2)(i), section 77 of the County Governments Act and sections 85-87 of the Public Service Commission Act. Relying on Hulbhan Gedi Abdille (Court of Appeal), the Court held that the Petitioner was bound to exhaust the appellate procedures, which he had not done. On procedural fairness, the Petitioner was given the allegations, made written representations, but snubbed two invitations to an oral Board hearing, so no breach was established. The double-jeopardy claim failed for want of minutes of any prior determination, and the Petitioner was found to have been dilatory in prosecuting the suit, having at one point obtained orders through material non-disclosure. The Amended Petition was dismissed with each party bearing own costs.

Key legal issues

Exhaustion of alternative dispute resolution avenues

Holding

The Petition was premature because the Petitioner did not exhaust the appellate procedures before the Public Service Commission

Reasoning

Article 234(2)(i), section 77 of the County Governments Act and sections 85-87 of the Public Service Commission Act give the PSC first-instance and appellate jurisdiction over county disciplinary disputes. Section 87(2) expressly outlaws first-instance court proceedings before the appellate procedures are exhausted, and the Petitioner did not exhaust them.

p. 3

Opportunity to be heard/procedural fairness

Holding

No infringement of fair labour practices or fair administrative action; the Petitioner was heard but declined to cooperate

Reasoning

The Petitioner was informed of the allegations, made written representations, and was invited twice to an oral hearing before the County Public Service Board but snubbed the invitations. A party who fails to cooperate with the employer in a disciplinary process cannot claim breach of fair hearing rights.

p. 4

Double jeopardy

Holding

The claim of double jeopardy failed for want of proof of any prior determination

Reasoning

Although the Petitioner alleged that a differently constituted Board had heard and determined the allegations, he produced no minutes or records. The recommendation letter of 27th August 2018 did not show he had been asked to address, or cleared of, the allegations leading to termination.

p. 4

Whether the Petition was undefended

Holding

It was not; the initial Response and replying affidavit remained valid on record

Reasoning

The Respondents had filed a Response and replying affidavit on 10th November 2017. The fact that an Amended Petition was later filed with leave to file further responses did not invalidate the initial filings or render the Petition undefended.

p. 3

Legal principles established

Where the Constitution and statute confer first-instance and appellate jurisdiction on the Public Service Commission over county disciplinary and recruitment disputes, a party must exhaust those procedures before moving the Court

Court orders

1.The Amended Petition is dismissed
2.Each party to bear own costs

Authorities

Legislation

Constitution of Kenya, 2010Article 41
Constitution of Kenya, 2010Article 47 and 47(2)
Constitution of Kenya, 2010Article 234(2)(i)
County Governments ActSection 77(1) & (2)
Public Service Commission ActSections 85, 86, 87 and 87(2)
Kisumu County Office of the County Attorney Act2018

Cases cited (1)

Secretary, County Public Service Board and Ar vs Hulbhan Gedi Abdille
(2017) eKLR

Jurisdiction invoked: Article 41 and Article 47 of the Constitution (employment and fair administrative action claims)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Amos William Omollo v County Government of Kisumu, Governor, Kisumu County, County Secretary, Kisumu County & Chairman, County Public Service Board (Petition 42 of 2017) [2021] KEELRC 263 (KLR)", Case Analysis (2021). ELRC Petition (Kisumu) - Amended Petition filed 26th May 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/263/eng@2021-12-02

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