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ELRCOtherPetition No 19 of 2020· [2021] KEELRC 1941 (KLR)

James Orre v Office of the Governor, County Government of Marsabit & another [2021] KEELRC 1941 (KLR)

Employment and Labour Relations Court
23 March 2021
DMD.K. Njagi Marete
2,873 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 ruled that a county employee can challenge dismissal in court without first appealing internally, since constitutional questions require judicial determination.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nyeri (Marete J) determines two preliminary objections by the 1st and 2nd Respondents arguing that the court lacked jurisdiction because the Petitioner, a county public officer whose employment was terminated by the County Governor's letter dated 22nd July 2020, had not first appealed to the Public Service Commission under Section 77 of the County Governments Act. The 1st Respondent relied on the Speaker v Karume principle that where a clear procedure for redress is prescribed it must be strictly followed, supported by Martin Kabubii Mwangi and James Tinai Murete. The 2nd Respondent invoked its disciplinary powers under Section 59 of the County Governments Act. The Petitioner countered that the objections failed the Mukhisa Biscuits test as they required ascertainment of facts - notably whether the Governor was exercising disciplinary control under Section 77 or general appointing-authority powers under Section 51 of the Interpretation and General Provisions Act, and the extent of the County Public Service Board's involvement since the termination letters were not copied to it. He further argued that the petition, which seeks declarations of unconstitutionality and certiorari under Articles 41 and 47, raises questions of legality and constitutionality outside the Public Service Commission's appellate mandate, relying on the NASA ex parte and Kisumu County Public Service Board authorities. The court agreed, held the exhaustion doctrine was surpassed by the circumstances, and disallowed the preliminary objections with costs to the Petitioner, paving way for the hearing of the petition.

Key legal issues

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01

Whether the preliminary objections qualify as pure points of law under the Mukhisa Biscuits test

Holding

The objections fail the Mukhisa Biscuits test because they would require analysis of evidence, notably whether the County Governor was exercising disciplinary control under Section 59 of the County Governments Act or general powers under Section 51 of the Interpretation and General Provisions Act

Reasoning

The court accepted the Petitioner's submission that whether the Governor's letter of 22nd July 2020 amounted to disciplinary control, whether the Petitioner was a gubernatorial appointee, and the extent of the 2nd Respondent's involvement (the letters not having been copied to the Board) are factual questions. A preliminary objection cannot succeed where facts must be ascertained.

p. 4
02

Whether failure to exhaust the Section 77 remedy (appeal to the Public Service Commission) ousts the court's jurisdiction

Holding

No - the petition seeks to test the constitutionality and legality of the termination, which lies outside the limits of Section 77 and falls within the High Court's jurisdiction over legality and constitutionality

Reasoning

Relying on authority that judicial review is the most efficacious remedy where illegality is alleged, and that an administrative appeal on merits differs from judicial determination of legality, the court held the exhaustion doctrine was surpassed by the circumstances and subject matter of the case, particularly as the Petitioner contests the Public Service Commission's jurisdiction over decisions of the County Governor rather than the County Public Service Board.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law not requiring ascertainment of facts or exercise of judicial discretion
  • The exhaustion doctrine does not bar a party from seeking judicial determination of the legality and constitutionality of administrative action

Court orders

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  1. 1.The preliminary objections by the 1st and 2nd Respondents are disallowed
  2. 2.The petition proceeds to hearing and determination
  3. 3.Costs of the preliminary objections awarded to the Petitioner

Authorities

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Legislation

  • County Governments ActSections 45, 59(1)(c), 77(1)
  • Employment ActSection 44
  • Constitution of Kenya, 2010Articles 41, 47(1) and (2)
  • Interpretation and General Provisions ActSection 51

Cases cited (8)

  • Speaker of the National Assembly vs The Hon. James Njenga Karume
    Civil Appeal No. NA 192 of 1992
  • Mukhisa Biscuits Manufacturing Company Ltd Vs West End Distributors Limited
    (1969) EA 696
  • Martin Kabubii Mwangi v County Government of Laikipia
    (2019) eKLR
  • James Tinai Murete & Others vs County Government of Kajiado and others
    High Court Civil Cause No. 283 of 2014
  • Shkalla vs Albania
  • Kisumu County Public Service Board v Samuel Okuro & 7 Others
    (2018) eKLR
  • Republic v Independent Election and Boundaries Commission ex parte National Super Alliance (NASA) Kenya & 6 Others
    (2017) eKLR
  • Secretary, County Public Service & Another v Hulbhai Gedi Abdille
    (supra)
Jurisdiction invoked
Not expressly invoked; decision on preliminary objections to a petition alleging violation of Articles 41 and 47 of the Constitution and Sections 45, 59 and 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, "James Orre v Office of the Governor, County Government of Marsabit & another [2021] KEELRC 1941 (KLR)", Case Analysis (2021). Petition No 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1941/eng@2021-03-23

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