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ELRCOtherNot stated in the judgment (Petition filed 7 May 2020)· [2021] KEELRC 2182 (KLR)

Henry Shadrack Anjila v Vihiga County Public Service Board & 2 others [2021] KEELRC 2182 (KLR)

Employment and Labour Relations Court
10 February 2021
RSRadido Stephen
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court stayed, rather than dismissed, an employee's petition because he first had to appeal to the Public Service Commission.

What this practically means

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Executive summary

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The Petitioner, a Livestock Production Officer originally employed by the Public Service Commission in 2000 and deployed to the County Government of Garissa upon devolution, was absorbed by the County Public Service Board, Vihiga in 2019 following a transfer of his services from Garissa. County officials later reversed the transfer on the ground that no legal framework existed for inter-county transfers of human resources, and by a letter of 18 March 2020 the Board declared the transfer and absorption ultra vires and treated any contractual relationship as at an end. The Petitioner filed this Petition on 7 May 2020 alleging rights violations, together with a Motion for conservatory orders; on 8 May 2020 the Court stayed the Board's decision of 18 March 2020. The County Government and County Secretary raised a Preliminary Objection asserting that the Court lacked jurisdiction because the Petitioner had not first appealed to the Public Service Commission under section 77 of the County Governments Act and sections 85 and 87(2) of the Public Service Commission Act. Reviewing conflicting first-instance decisions and the binding Court of Appeal authority in Hulbhai Gedi Abdille requiring exhaustion, but heeding limitation-law concerns from Daniel Ngugi Waweru, the Court declined to strike out the Petition. Instead it stayed the Petition pending the Petitioner exercising, if he so wished, the statutory right of appeal to the Public Service Commission, noting the Commission may admit out-of-time appeals. It made no order on costs. Delivered at Kisumu on 10 February 2021 by Radido Stephen, Judge.

Key legal issues

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01

Effect of failure to exhaust the appellate remedy under section 77 of the County Governments Act before filing a petition

Holding

Proceedings filed before exhaustion should be stayed rather than struck out, given limitation-law concerns that go to jurisdiction

Reasoning

The Court noted inconsistent positions among differently constituted ELRC benches: some held section 77 permissive ('may appeal'), others, following the Court of Appeal in Hulbhai Gedi Abdille, treated exhaustion as mandatory. Accepting the Court of Appeal's binding holding but recognising, per Daniel Ngugi Waweru, that pursuing internal appeals may cause causes of action to be defeated by limitation periods, the Court crafted a middle course: stay the petition pending the internal appeal, since the Commission can extend the ninety-day period.

p. 4

Legal principles established

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  • Where a litigant has not exhausted the statutory appellate remedy to the Public Service Commission under section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act, the appropriate order is a stay of proceedings, not striking out, because of limitation concerns
  • The Public Service Commission may entertain an appeal filed outside the ninety-day period prescribed by section 77(3) of the County Governments Act

Court orders

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  1. 1.The Petition is stayed pending the Petitioner exercising, if at all, the right given by section 77 of the County Governments Act and section 87 of the Public Service Commission Act
  2. 2.No order on costs

Authorities

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Legislation

  • County Governments Actsection 77(1) and (3)
  • Public Service Commission Actsections 85 and 87(2)
  • Constitution of Kenyanot specified (devolution of agriculture and livestock functions to county governments)

Cases cited (5)

  • Abdikadir Suleiman v County Government of Isiolo & Ar
    (2015) eKLR
  • Thuranira Salesio Mutuma v County Public Service Board & 2 Ors
    (2019) eKLR
  • Martin Kabubii Mwangi v County Government of Laikipia
    (2019) eKLR
  • Secretary, County Public Service Board and Ar vs Hulbhan Gedi Abdille
    (2017) eKLR
  • Daniel Ngugi Waweru v Attorney General & Ar
    (2017) eKLR
Jurisdiction invoked
Not expressly stated; Petition alleging violation of rights before the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Henry Shadrack Anjila v Vihiga County Public Service Board & 2 others [2021] KEELRC 2182 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition filed 7 May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2182/eng@2021-02-10

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