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ELRCOtherNot stated in judgment· [2021] KEELRC 1564 (KLR)

Roba Abduba Qanchora v County Government of Isiolo & another [2021] KEELRC 1564 (KLR)

Employment and Labour Relations Court
16 June 2021
DMD.K.Njagi Marete
723 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it can hear county employee disputes directly, even where the County Governments Act offers an appeal to the Public Service Commission.

What this practically means

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Executive summary

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This was a preliminary objection dated 15th December 2020 in a claim before the Employment and Labour Relations Court at Nyeri, in which the respondents contended that the court lacked jurisdiction to entertain the claimant's challenge to his redeployment/re-designation by the county public service, because Section 77 of the County Governments Act, 2012 provides an appeal to the Public Service Commission. The respondents relied on Republic vs National Management Authority Ex-parte Sound Equipment Ltd and Secretary County Public Service Board vs Hulbhai Gedi Abdille for the proposition that where a statutory appeal mechanism exists, a party ought to pursue it rather than invoke the court process. The claimant responded that Section 77 uses the permissive word 'may', which does not divest the court of jurisdiction, and relied on Abdikadir Suleiman v County Government of Isiolo & Another, where it was held that the ELRC enjoys original and unlimited jurisdiction under Article 162(2)(a) as read with Article 165(5) and (6) of the Constitution and Section 12 of the Employment and Labour Relations Act to determine the legality, lawfulness or constitutionality of such decisions, and that such matters are not listed appealable subject matter under Section 77. The court agreed with the claimant, dismissed the preliminary objection, and ordered that each party bear the costs of the application. The judgment is delivered by D.K.Njagi Marete, Judge, dated 16th June 2021 at Nyeri.

Key legal issues

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01

Whether Section 77 of the County Governments Act, 2012 ousts the ELRC's jurisdiction over the claimant's challenge to redeployment/re-designation

Holding

The preliminary objection was dismissed. The court accepted that the word 'may' in Section 77 is permissive and does not divest the court of jurisdiction, and that allegations of illegality, unlawfulness and unconstitutionality fall for determination by the court in the first instance.

Reasoning

The respondents argued that the claimant should first have exhausted the statutory appeal to the Public Service Commission under Section 77, relying on authorities on alternative remedies. The claimant countered that the provision uses the permissive word 'may' and cited authority holding that the ELRC enjoys original jurisdiction under Article 162(2)(a) and Section 12 of the ELR Act to determine the legality or constitutionality of such decisions. The court agreed with the claimant and dismissed the objection.

p. 1

Legal principles established

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  • The discretionary word 'may' in Section 77 of the County Governments Act does not divest the ELRC of jurisdiction over allegations that a county public service decision is illegal, unlawful or unconstitutional.
  • Jurisdiction to make a primary finding on the legitimacy or lawfulness of a county public service decision vests in the ELRC, and such matters are not appealable subject matter under Section 77 of the County Governments Act.

Court orders

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  1. 1.The preliminary objection dated 15th December, 2020 is dismissed
  2. 2.Each party to bear the costs of the application

Authorities

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Legislation

  • County Governments ActSection 77
  • Constitution of Kenya, 2010Article 162(2)(a), Articles 165(5) and (6), Article 22(1)
  • Employment and Labour Relations ActSection 12

Cases cited (3)

  • Republic vs National Management Authority Ex-parte Sound Equipment Ltd
    (2011) eKLR
  • Secretary County Public Service Board vs Hulbhai Gedi Abdille
    (2017) eKLR, Court of Appeal Civil Appeal No. 202/2015
  • Abdikadir Suleiman v County Government of Isiolo & Another
    ELRC at Nyeri Cause Number 76 of 2015, 2015 eKLR
Jurisdiction invoked
Article 162(2)(a) as read with Article 165(5) and (6) of the Constitution; Section 12 of the Employment and Labour Relations Act, 2011

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, "Roba Abduba Qanchora v County Government of Isiolo & another [2021] KEELRC 1564 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1564/eng@2021-06-16

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