Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2021] KEELRC 1122 (KLR)

Patricia Wairimu Munene v County Public Service Board, Kirinyaga County & another [2021] KEELRC 1122 (KLR)

Employment and Labour Relations Court
26 July 2021
DMD.K.Njagi Marete
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that county employees can go straight to the Employment Court without first appealing to the Public Service Commission.

What this practically means

#

Executive summary

#
The Respondents raised a preliminary objection dated 15th January 2021 seeking to strike out the Petitioner's application and petition for lack of jurisdiction. They argued that the Petitioner, whose appointments were redesignated by a letter dated 28th March 2019, was required first to exhaust the appeal mechanism to the Public Service Commission under section 77 of the County Government Act and the exhaustion requirement in section 9(2) of the Fair Administrative Action Act, relying on Owners of Motor Vessel 'Lilian S', Speaker of the National Assembly v Karume and International Centre for Policy. The Petitioner opposed, relying on Mukhisa Biscuits on the nature of preliminary objections, and submitted that the court's jurisdiction is constitutional under Article 162(2)(a) and section 12(1) of the ELRC Act. She relied on Abdikadir Suleiman and Thuranira Salesio to show that appeals to the PSC under section 77 are discretionary, not mandatory, and argued that section 77 conflicts with section 87 of the Employment Act, 2007, and obstructs access to justice. The court agreed, holding that section 77 must yield to the Constitution and the Employment Act under a broad and purposive Article 259 construction, describing the provision as self-defeating and a fetter to the administration of justice. The preliminary objection was disallowed with costs to the Petitioner.

Key legal issues

#
01

Exhaustion of remedies under section 77 of the County Government Act

Holding

Appeal to the PSC under section 77 is not mandatory; the ELRC's constitutional jurisdiction prevails

Reasoning

The court agreed with the Petitioner that section 77 conflicts with the Constitution and section 87 of the Employment Act, 2007, which vests disputes between employer and employee in the ELRC. Applying Article 259's purposive interpretation, the court held section 77 to be non-mandatory, self-defeating and a fetter to access to justice, and declined to down its tools.

p. 2
02

Validity of the preliminary objection

Holding

The objection failed as a matter of law and on the merits

Reasoning

The court accepted the Petitioner's submissions distinguishing constitutional from statutory jurisdiction, relying on authorities holding that section 77 does not oust the court's jurisdiction. The court found the Petitioner's case overwhelmed the Respondents' and disallowed the objection with costs.

p. 3

Legal principles established

#
  • Section 77 of the County Government Act is not a mandatory bar to approaching the ELRC where the court holds constitutional jurisdiction under Article 162(2)(a) read with the Employment Act
  • Constitutional provisions must be construed broadly and purposively under Article 259

Court orders

#
  1. 1.Preliminary objection disallowed with costs to the Petitioner/Respondent
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with Section 12(1) of the Employment and Labour Relations Court Act, 2014

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patricia Wairimu Munene v County Public Service Board, Kirinyaga County & another [2021] KEELRC 1122 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1122/eng@2021-07-26

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