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ELRCOtherNot stated in judgment· [2022] KEELRC 404 (KLR)

Silas Ngundo Kenros v Kilifi County Public Service Board [2022] KEELRC 404 (KLR)

Employment and Labour Relations Court
17 March 2022
BMB. O. M. Manani
1,157 words in judgment
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The bottom line

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County employees must appeal Public Service Board decisions to the Public Service Commission before going to court—but the court gave a second chance via a stay.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by B. O. M. Manani, J, delivered on 17th March 2022, dealt with a preliminary objection raised by the Respondent contesting the court's jurisdiction. The objection, though founded on section 59(c) of the County Governments Act and section 28 of the Urban Areas and Cities Act, was in substance directed at the exhaustion principle under section 77 of the County Governments Act, which requires persons aggrieved by County Public Service Board decisions to appeal to the Public Service Commission, a requirement anchored in article 234(2)(j) of the Constitution. The court surveyed conflicting authorities: some declined similar objections where legality and constitutionality issues arose, while others upheld them on exhaustion grounds. The Court of Appeal's decision in Secretary, County Public Service Board & another v Hulbhai Gedi Abdille was treated as giving firm direction that the appellate route under section 77 is the appropriate first recourse. Finding nothing in the pleadings to show the dispute unsuitable for the statutory mechanism, the court held it improper to assume jurisdiction. However, exercising its overriding duty to do justice and refusing to lock a party out of the seat of justice except as a last resort, it declined to strike out the suit and instead stayed it to allow the Claimant to appeal to the Commission. The court declined to impose timelines on the Commission, citing its independence as a constitutional organ and its own regulations. Parties were granted liberty to seek adoption of the Commission's decision as a judgment of the court.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms under section 77 of the County Governments Act

Holding

The filing of the suit in court without first appealing to the Public Service Commission violated section 77 of the CGA, but the suit was stayed rather than struck out

Reasoning

Section 77 of the CGA, founded on article 234(2)(j) of the Constitution, requires aggrieved persons to appeal CPSB decisions to the Public Service Commission. The pleadings disclosed no reason the dispute was unsuitable for that mechanism, so it was improper for the court to assume jurisdiction. However, given the constitutional duty to do substantive justice and the Commission's power to admit out-of-time appeals, a stay rather than striking out was appropriate.

p. 2
02

Whether the court can direct timelines for the Commission's handling of the appeal

Holding

The court cannot impose timelines on the Public Service Commission

Reasoning

The Commission is an independent constitutional organ not subject to external control; it must first admit the appeal before setting timelines; and it already has elaborate regulations covering timelines for hearing appeals.

p. 2

Legal principles established

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  • Where an alternative dispute resolution mechanism is provided in law, parties must exhaust it before resorting to court, and may depart from it only where it is demonstrated to be unsuitable
  • A court should not lock a party out of the seat of justice except as a last resort

Court orders

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  1. 1.Declaration that the filing of the case before the Employment and Labour Relations Court without first filing an appeal before the Public Service Commission violated section 77 of the County Governments Act
  2. 2.Stay of the cause to enable the Claimant to file an appeal before the Public Service Commission if at all
  3. 3.Liberty to the parties to file the Commission's decision (if any) for adoption as a judgment of the court or seek further and or other directions

Authorities

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Legislation

  • County Governments Actsection 59(c)
  • Urban Areas and Cities Actsection 28
  • County Governments Actsection 77
  • Constitution of Kenya 2010article 234(2)(j)
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • James Orre v Office of the Governor, County Government of Marsabit & another
    [2021] eKLR
  • Martin Kabubii Mwangi v County Government of Laikipia
    (2019) eKLR
  • Evans Ladtema Muswahili v Vihiga County Public Service Board
    [2022] eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Henry Shadrack Anjila v Vihiga County Public Service Board & 2 others
    [2021] eKLR
Jurisdiction invoked
Dispute filed before the Employment and Labour Relations Court; jurisdiction contested under section 77 of the County Governments Act as read with article 234(2)(j) of the Constitution of Kenya 2010

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, "Silas Ngundo Kenros v Kilifi County Public Service Board [2022] KEELRC 404 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/404/eng@2022-03-17

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