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ELRCStruck OutPetition dated 6th September 2021 (Employment and Labour Relations Court at Bungoma)· [2021] KEELRC 301 (KLR)

Dominic Chungani Muteshi v County Government of Kakamega & another [2021] KEELRC 301 (KLR)

Employment and Labour Relations Court of Kenya
2 December 2021
JKJ W Keli
2,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a county employee's petition because he skipped the internal appeal process required before going to court.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Bungoma (J W Keli, J) determined a notice of preliminary objection dated 4th October 2021 raised by the Respondents against a petition dated 6th September 2021 by a Kakamega County employee challenging his suspension and impending disciplinary process. The Respondents argued that the court lacked jurisdiction because the Petitioner had not exhausted the internal disciplinary and appeal mechanisms under section 77 of the County Governments Act, 2012, Article 235(1)(c) of the Constitution, and the applicable human resource manuals, and that the petition was premature as the disciplinary process was ongoing and the suspension had not exceeded three months. The Petitioner countered that under Article 162(2)(a) the court is properly seized of employment and constitutional disputes, relying on authority doubting that the exhaustion doctrine applies to constitutional petitions, and on Giella v Cassman Brown for the interim injunction sought. The court held that the Court of Appeal decision in Secretary County Public Service Board v Hulbhai Gedi Abdille (2017) eKLR is binding and settled that a party must first pursue the specialized appellate procedure under section 77 before resorting to court, even by way of constitutional petition. The court found the contrary High Court decision in the Muswahili case unpersuasive, and invoked the Supreme Court's doctrine of judicial restraint against premature judicial interference with other arms of government. The court upheld the preliminary objection and struck out the petition for prematurity, with no order as to costs.

Key legal issues

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01

Exhaustion of remedies under section 77 of the County Governments Act before filing a petition

Holding

The preliminary objection is upheld; the Petition is struck out for prematurity because the Petitioner failed to exhaust the statutory mechanisms under section 77 of the County Governments Act, 2012 in the first instance

Reasoning

The court held that the Court of Appeal decision in Secretary County Public Service Board v Hulbhai Gedi Abdille (2017) eKLR is binding and settled the interpretation of section 77, upholding the doctrine of exhaustion. The appellate procedure before the Public Service Commission is a specialized forum underpinned by Article 235(1)(c) of the Constitution. The Petitioner, still in employment, ought to have pursued that avenue first; the contrary High Court decision was found unpersuasive.

p. 3
02

Whether the doctrine of exhaustion applies to constitutional petitions

Holding

It does; the submission that a constitutional petition cannot be defeated by the doctrine of exhaustion of remedies failed

Reasoning

The court relied on the binding Court of Appeal decision in Hulbhai Gedi Abdille, which held that even if the matter were a constitutional petition it could not succeed where the statutory dispute mechanism was disregarded, citing Mugendi v Kenyatta University. The court also invoked the Supreme Court's doctrine of judicial restraint cautioning courts against premature interference with other arms of government.

p. 3

Legal principles established

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  • Where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a grievance, that procedure must be strictly followed before resorting to the court process
  • A county public officer aggrieved by disciplinary control must first appeal to the Public Service Commission under section 77 of the County Governments Act before approaching the court, even by way of constitutional petition

Court orders

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  1. 1.The court upholds the Preliminary Objection by the Respondents dated 4th October 2021
  2. 2.The Petition dated 6th September 2021 is struck out for being premature on the basis of failure to exhaust the statutory mechanisms under section 77 of the County Governments Act, 2012
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)(a)(i)
  • Constitution of KenyaArticle 235(1)(c)
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticles 28, 41, 47 to 50
  • County Governments ActSection 77(1)
  • County Governments ActSection 59
  • Public Service Commission ActSections 85(c) and 87(2)
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Clauses K.1 and K.10
  • Kakamega County Human Resources and Procedures Manual, 2016Clause P.11

Cases cited (11)

  • R v Lawrence Omhaha Ag County Chief Officer, Public Service County Government of Kakamega and 4 others Exparte Kenya County Government Workers Union
    (2021) eKLR
  • Susan Wanjiru Mwai & 69 Others v County Government of Kirinyaga and 2 Others
    (2020) eKLR
  • Kaisow Billow Issack v Ministry of Interior and Coordination of National Government and 3 Others
    (2021) eKLR
  • Evans Ladtema Muswahili v Vihiga County Public Service Board & 20 Others; Marley Ezekiel Ayiego (Interested Party)
    (2021) eKLR
  • Guelia v Cassman Brown & Company Limited
    (1973) EA 358
  • Secretary County Public Service Board and Another v Hulbhai Gedi Abdille
    (2017) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    [2013] eKLR
  • Alphonse Mwangemi Munga & Others v African Safari Club Ltd
    [2008] eKLR
  • Julius Kariuki Mate & Another v Martin Nyaga Wambora and Another
    2017 eKLR
  • Evans Muswahali Ladtema v The County Assembly of Vihiga County
    Kisumu ELR Constitution Petition No. 31 of 2020
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Dominic Chungani Muteshi v County Government of Kakamega & another [2021] KEELRC 301 (KLR)", Case Analysis (2021). Petition dated 6th September 2021 (Employment and Labour Relations Court at Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/301/eng@2021-12-02

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