County Assembly of Embu v Embu County Public Board [2021] KEELRC 2076 (KLR)

The court held that the subject matter determines jurisdiction. The complaint challenged the legality of recruitment by a constitutional body, a matter the PSC lacks competence to determine. Relying on its own decision in Mike Sonko Mbuvi, the court held that jurisdiction flows from Article 162(2)(a), Article 165(5)(b) and Section 12 of the Employment and Labour Relations Court Act, and that requiring recourse to the Commission would amount to delayed justice on a speculative jurisdiction.

The respondent exhibited schemes of service approved by the Public Service Commission establishing the health positions, statutory bases for the County Attorney and the Embu County Investment and Development Corporation board members, and the Talent Academy posts. The petitioner failed to adduce credible evidence or particularise the alleged breaches with precision, so the respondent's uncontroverted case carried the day.

The respondent exhibited an approved supplementary budget covering the salaries of recruited staff, and the petitioner herself passed it, raising estoppel under section 120 of the Evidence Act. In any event Section 135(1) of the Public Finance Management Act permits county governments to spend unappropriated money and regularise it through a supplementary budget, and withdrawals from the Revenue Fund require Controller of Budget approval under Article 207(3).

Quashing the recruitment would affect office holders employed on permanent and pensionable terms and bodies such as the PSC which established the health positions, none of which were enjoined. Orders cannot be enforced against persons who are not parties, consistent with natural justice. The court applied Bellevue Development Company Limited v Vinayak Builders Limited on this principle.