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ELRCDismissedChamber Summons (leave to commence judicial review proceedings) - unspecified number· [2021] KEELRC 1382 (KLR)

Bethwel Kiplagat Toromo & 2 others v County Public Service Board & another [2021] KEELRC 1382 (KLR)

Employment and Labour Relations Court
30 June 2021
RSRadido Stephen
617 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 refused to hear three dismissed Vihiga county workers because they skipped the required appeal to the Public Service Commission first.

What this practically means

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Executive summary

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Three applicants, Bethwel Kiplagat Toromo, Pritty Alumasa and Michael Shikoli, were dismissed by the County Public Service Board, Vihiga through letters dated 12 March 2021 and 12 April 2021. They filed a Chamber Summons seeking leave to commence judicial review proceedings against the Board and the County Government of Vihiga. The respondents were served but did not participate; the applicants filed a supplementary affidavit and submissions pursuant to court orders. The Court considered Article 234(2)(ii) of the Constitution, which empowers the Public Service Commission to hear and determine appeals relating to county governments' public service, section 77(1) and (2)(c) of the County Governments Act requiring appeals to the Commission against County Public Service Boards' exercise of disciplinary powers, and section 87(2) of the Public Service Commission Act restricting court proceedings before exhaustion of the Part XV appeal procedure. Relying on the Court of Appeal decisions in Geoffrey Muthinja and Hulbhai Gedi Abdille, which the Court held to be binding, the Court found that the applicants had not exhausted the statutory appeal procedures before seeking leave to commence judicial review. The Court declined to grant leave and made no order on costs. The judgment was delivered through Microsoft Teams, dated and signed in Kisumu on 30 June 2021 by Radido Stephen, Judge.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms before seeking judicial review

Holding

Leave to commence judicial review was refused because the applicants had not first exhausted the appeal to the Public Service Commission.

Reasoning

Article 234(2)(ii) of the Constitution empowers the Public Service Commission to hear and determine appeals concerning county governments' public service. Section 77(1) and (2)(c) of the County Governments Act requires persons dissatisfied with a County Public Service Board's disciplinary decisions to appeal to the Commission, while section 87(2) of the Public Service Commission Act restricts court proceedings before exhaustion. The Court of Appeal authorities on the exhaustion doctrine bind this Court, and the applicants' failure to appeal was fatal to the application for leave.

p. 1

Legal principles established

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  • Where a dispute resolution mechanism exists outside the courts, it must be exhausted before the court's jurisdiction is invoked; courts are fora of last resort.
  • Section 77 of the County Governments Act provides a specialised first-instance forum before the Public Service Commission for grievances against County Public Service Boards' exercise of disciplinary powers.

Court orders

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  1. 1.Leave to commence judicial review proceedings declined
  2. 2.No order on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 234(2)(ii)
  • County Governments ActSection 77(1) and (2)(c)
  • Public Service Commission ActSection 87(2), Part XV

Cases cited (2)

  • Geoffrey Muthinja & Ar v Samuel Muguna Henry & 1756 Ors
    (2015) eKLR
  • Secretary, County Public Service Board & Ar v Hulbhai Gedi Abdille
    (2017) eKLR
Jurisdiction invoked
Article 234(2)(ii) of the Constitution, section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act (exhaustion of appeal procedure)

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, "Bethwel Kiplagat Toromo & 2 others v County Public Service Board & another [2021] KEELRC 1382 (KLR)", Case Analysis (2021). Chamber Summons (leave to commence judicial review proceedings) - unspecified number. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1382/eng@2021-06-30

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