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ELRCDismissedNot stated in the judgment as provided· [2021] KEELRC 1211 (KLR)

Loosenge David England v Governor Samburu County Moses Kasaine Lenonkul & 2 others [2021] KEELRC 1211 (KLR)

Employment and Labour Relations Court
19 July 2021
DMD.K.NJAGI MARETE
1,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that Section 77 of the County Governments Act does not block employees from going directly to court over county employment disputes.

What this practically means

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Executive summary

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The 1st Respondent/Objector raised a preliminary objection dated 11th May 2021 contending that the Employment and Labour Relations Court lacked jurisdiction to entertain the Claimant's suit by dint of Section 77 of the County Governments Act, and that the suit was premature, misconceived and an abuse of court process. The Claimant, in a response sworn on 20th May 2021, opposed the objection, arguing that it was not founded on pure points of law, raised factual issues requiring interrogation, that Section 77 concerns appeals against decisions of the County Public Service Board rather than unilateral decisions of a County Governor, and that Section 77 is not mandatory and does not oust the court's constitutionally donated jurisdiction. The Objector relied on Mukhisa Biscuit, Martin Kabui Mwangi v County Government of Laikipia and Secretary, Wajir County Public Service Board v Hulbal Gedi Abdille to urge the exhaustion doctrine under Section 77. The Claimant relied on Nguruman and Mrao. Marete J agreed with the Claimant. The court held that Section 77 is not anchored in mandatory terms, that it applies particularly where issues do not take a constitutional form, and that the court's jurisdiction remains intact and not fettered by Section 77, the boundary between the two jurisdictions depending on subject matter and prevailing circumstances. The preliminary objection was dismissed with costs to the Claimant/Respondent, in a ruling delivered at Nyeri on 19th July 2021.

Key legal issues

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01

Whether Section 77 of the County Governments Act ousts the court's jurisdiction and requires exhaustion before filing suit

Holding

The preliminary objection fails; Section 77 is not in mandatory terms and does not limit the court's jurisdiction.

Reasoning

The court found that Section 77 is not anchored in mandatory terms, and that the exhaustion requirement applies particularly where the issues do not take a constitutional form. The boundary between the two jurisdictions depends on the subject matter and prevailing circumstances, so the court's jurisdiction remains intact. The objection therefore was not sustainable and was dismissed with costs.

p. 2

Legal principles established

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  • Section 77 of the County Governments Act is not mandatory and does not oust the ELRC's jurisdiction; the applicability of the exhaustion requirement depends on the subject matter and prevailing circumstances.

Court orders

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  1. 1.Dismissal of the preliminary objection dated 11th May, 2021
  2. 2.Costs of the preliminary objection to the Claimant/Respondent

Authorities

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Legislation

  • County Governments ActSection 77
  • Constitution of KenyaArticle 234

Cases cited (7)

  • Mukhisa Biscuit Manufacturing Co.Ltd v West End Distributors Ltd
    (1969) EA 696
  • Martin Kabui Mwangi v County Government of Laikipia
    (2019) eKLR
  • Secretary, County Public Service & Another v Hulbhai Gedi Abdille
  • Secretary, Wajir County Public Service Board v Hulbal Gedi Abdille
    (2017) eKLR
  • Republic v National Environment Management Authority
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Constitution and statute; objection based on Section 77 of the County Governments Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Loosenge David England v Governor Samburu County Moses Kasaine Lenonkul & 2 others [2021] KEELRC 1211 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1211/eng@2021-07-19

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