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ELRCStruck OutNot stated in the judgment extract· [2021] KEELRC 1997 (KLR)

Nicodemus Akumu Nyangeri & 7 others v County Government of Kisii & another [2021] KEELRC 1997 (KLR)

Employment and Labour Relations Court
11 March 2021
MNMathews N. Nduma
1,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out county employees' pay claims because they skipped the required appeal to the Public Service Commission before going to court.

What this practically means

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Executive summary

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The claimants sued the County Government of Kisii and the Chairman of the Kisii County Public Service Board, aggrieved that after attending vetting before the Board on 19/9/2016 for Youth Polytechnic instructor positions, the results were never communicated, some were never absorbed, and no salaries were paid from June 2014. They sought salary arrears and benefits for those who attained retirement age and absorption plus arrears for those never absorbed. The respondents filed a preliminary objection on two grounds: failure to exhaust the appeal procedure under Section 87(2) of the Public Service Act and Section 77 of the County Government Act before the Public Service Commission, rendering the suit premature; and limitation under Section 90 of the Employment Act. Applying the Lilian's 'downs tools' principle and following the Court of Appeal's decision in Hulbhai Gedi Abdille, Nduma J held that the claimants, having appeared before the Board but never appealed its decision, could not bypass the statutory appellate mechanism, and that the Court therefore lacked jurisdiction and struck out the suit. However, the limitation limb failed: the suit, filed on 22/2/2019, was within three years of the 19/9/2016 decision. Each party was ordered to bear its own costs, the respondents being organs of devolved county governments. The ruling was delivered online pursuant to COVID-19 directives with the parties' consent.

Key legal issues

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01

Jurisdiction - failure to exhaust statutory appeal mechanism

Holding

The Court lacks jurisdiction to entertain a claim by persons aggrieved by a County Public Service Board decision who have not appealed to the Public Service Commission under Section 77 of the County Government Act; the suit is struck out.

Reasoning

Relying on Owners of the Motor Vessel 'Lilians' v Caltex Oil, jurisdiction is everything and a court must down its tools once it finds it lacks jurisdiction. Following the Court of Appeal in Hulbhai Gedi Abdille, the statutory appellate mechanism under Section 77 is a specialized forum that must be invoked at first instance. The claimants appeared before the Board on 19/9/2016 but never appealed, instead filing suit over two years later, and the Court was bound by that precedent.

p. 2
02

Limitation under Section 90 of the Employment Act

Holding

The preliminary objection on limitation failed because the suit was filed within three years of the decision of 19/9/2016.

Reasoning

Section 90 of the Employment Act imposes a three-year limitation period for employment claims. The decision not to absorb the claimants was made on 19/9/2016 and the suit was filed on 22/2/2019, less than three years later. Accordingly, the claim was not time barred, and only the jurisdictional limb of the objection succeeded.

p. 3

Legal principles established

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  • A person aggrieved by a decision of a County Public Service Board must first exhaust the appellate procedure under Section 77 of the County Government Act before resorting to court; a court faced with an unexhausted statutory dispute-resolution mechanism lacks jurisdiction and must down its tools

Court orders

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  1. 1.The suit is struck out for want of jurisdiction
  2. 2.The objection on the basis of the statute bar (limitation) is not upheld
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Public Service ActSection 87(2)
  • County Government ActSection 77
  • Employment ActSection 90
  • Constitution of Kenya, 2010Article 234(2)(i)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Owner's of the Motor Vessel "Lilians" –vs- Caltex Oil Kenya Limited
    (1989) eKLR
  • Secretary County Public Service Board and Another – vs- Hulshani Gedi Abdille
    [2017] eKLR
Jurisdiction invoked
Article 162(2) Constitution (employment and labour relations court jurisdiction); objection grounded on Section 87(2) Public Service Act and Section 77 County Government Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicodemus Akumu Nyangeri & 7 others v County Government of Kisii & another [2021] KEELRC 1997 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1997/eng@2021-03-11

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