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ELRCDismissedPetition dated February 8, 2022· [2022] KEELRC 68 (KLR)

Musumba & 37 others v Kakamega County Water and Sanitation Company & 5 others (Petition 1 of 2022) [2022] KEELRC 68 (KLR)

Employment and Labour Relations Court
26 May 2022
JKJ. W. Keli
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court in Bungoma kept a dispute over staff transfers to Kakamega County alive, ruling that objections based on disputed facts cannot end a case early.

What this practically means

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Executive summary

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The 1st to 4th Respondents filed a Notice of Preliminary Objection dated March 15, 2022 seeking the striking out of the Petition dated February 8, 2022, which challenged a decision to transfer the Petitioners' services to the 2nd Respondent. The Respondents contended the court lacked jurisdiction because the Petitioners had not exhausted internal dispute resolution mechanisms, including appeals to the Public Service Commission under Article 234(2) of the Constitution, Section 77 of the County Governments Act, Section 87(2) of the Public Service Commission Act, and the applicable HR policy manuals. The Petitioners countered that they were employees of Kakamega County Water and Sanitation Company, a water service provider under Section 55 of the Water Act, not of the County Public Service Board. The court, applying Owners of the Motor Vessel Lilian 'S' and In Re Interim Independent Electoral Commission on jurisdiction, and Mukisa Biscuits on the threshold for preliminary objections, held that the objection could not succeed because the identity of the Petitioners' employer was a disputed fact requiring ascertainment, and a preliminary objection must be a pure point of law. It further held that the court has original jurisdiction over employment disputes and a jurisdictional objection founded on the exhaustion doctrine cannot be upheld where facts are unsettled. The Notice of Preliminary Objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

It did not, because the facts of who employed the Petitioners were disputed and required court determination

Reasoning

The Respondents argued the Petitioners were county public officers bound to appeal to the Public Service Commission under Article 234(2)(i), Section 77 of the County Governments Act and Section 87 of the PSC Act. The Petitioners countered they were employees of Kakamega County Water and Sanitation Company under Section 55 of the Water Act. Since the employer's identity was contested and the Respondents had not yet filed a substantive response, the objection raised disputed facts, not a pure point of law, and was dismissed.

p. 4
02

Whether the doctrine of exhaustion barred the Petition

Holding

Not at this stage, as exhaustion presupposes the Petitioners fall within the county public service, a fact not settled

Reasoning

The court accepted that challenges to County Public Service Board decisions must first go to the Public Service Commission under Section 77. However, since it was not a settled fact that the Petitioners were employees of the Service Board - their employment letters being from the water company - the court retained original jurisdiction to determine employment disputes and could not uphold an exhaustion-based objection on disputed facts.

p. 5

Legal principles established

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  • A preliminary objection cannot be upheld where facts must be ascertained; it must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Jurisdiction is everything; a court must down its tools once it holds it lacks jurisdiction
  • Where the facts are in dispute, a preliminary objection based on jurisdiction cannot be upheld even where the doctrine of exhaustion is invoked

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15th March 2022 by the 1st, 2nd, 3rd and 4th Respondents is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)(a)(c)/(i)
  • County Governments ActSection 77
  • Public Service Commission ActSections 85(c) and 87(2)
  • County Governments ActSections 56 and 59
  • Water Act No. 8 of 2002Section 55
  • Human Resources Policies and Procedures Manual for the Public Service 2016Clause K.10(1)
  • Kakamega County Human Resources Policies and Procedures Manual 2016Clause P.11

Cases cited (5)

  • Owners of the Motor Vessel Lilian "S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • In Re The Matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    [1969] E.A 696
  • Independent Electoral & Boundaries Commission v Jane Cheperrenger and 2 others
    [2015] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shalbal & 2 others (Petition No. 10 of 2013)
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment disputes; court held it has jurisdiction to determine employer identity despite exhaustion doctrine invoked under Article 234 of the Constitution, Section 77 County Governments Act and Section 87 Public Service Commission 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, "Musumba & 37 others v Kakamega County Water and Sanitation Company & 5 others (Petition 1 of 2022) [2022] KEELRC 68 (KLR)", Case Analysis (2022). Petition dated February 8, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/68/eng@2022-05-26

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