Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in the ruling extract· [2022] KEELRC 791 (KLR)

Evans Shipala Mulunji (Suing as an Administrator of the Estate of Evelyne Khabukwi Mulunji) v County Government of Kakamega [2022] KEELRC 791 (KLR)

Employment and Labour Relations Court
17 February 2022
CBChristine N. Baari
967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

County government employees in Kenya must appeal to the Public Service Commission before suing in the Employment and Labour Relations Court, or their case will be struck out.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court at Kisumu (Baari J) determined the Respondent's Notice of Preliminary Objection dated 31st March 2021, which sought the striking out of the Claimant's suit for prematurity and abuse of process. The Respondent contended that the Claimant, an employee in the county government public service, was bound to appeal to the Public Service Commission under Article 234(2) of the Constitution, Section 77 of the County Government Act, 2012, and Sections 85 and 87(2) of the Public Service Commission Act, 2017, before approaching the court, relying on Lukale Moses Sande and Susan Wanjiru Mwai. The Claimant opposed, relying on Karisa Chengo, arguing the statutory mechanisms do not oust the court's constitutional jurisdiction. Framing the sole issue as whether Sections 77 and 87(2) oust the court's jurisdiction, the court reproduced the statutory provisions and held that employment disputes from county government public service must first go to the Public Service Commission by way of appeal; Section 87(2) expressly bars legal proceedings before exhaustion. Applying the exhaustion doctrine per Geoffrey Muthinji and the Sound Equipment case, and the Owners of Motor Vessel 'Lillian S' principles on jurisdiction, the court found the suit offended the exhaustion doctrine, declined jurisdiction, and struck out the suit dated 14th December 2021 with no orders as to costs.

Key legal issues

#
01

Exhaustion of statutory appeal mechanisms as a bar to the Court's jurisdiction

Holding

The suit is premature and offends the doctrine of exhaustion; the court declines jurisdiction and strikes out the suit.

Reasoning

Section 77 of the County Government Act requires appeals to the Public Service Commission against decisions of County Public Service Boards, including disciplinary control. Section 87(2) of the Public Service Commission Act expressly bars filing legal proceedings before exhausting that procedure. Relying on binding precedents on exhaustion and jurisdiction, the court held the mechanisms must be used first, courts being fora of last resort.

p. 2

Legal principles established

#
  • Section 87(2) of the Public Service Commission Act, 2017 ousts the ELRC's jurisdiction over employment disputes arising from county government public service until the statutory appeal procedure is exhausted

Court orders

#
  1. 1.The Claimant’s suit dated 14th December, 2021 is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; objection premised on Article 234(2) of the Constitution, Section 77 of the County Government Act, 2012, and Sections 85 and 87(2) of the Public Service Commission Act, 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Evans Shipala Mulunji (Suing as an Administrator of the Estate of Evelyne Khabukwi Mulunji) v County Government of Kakamega [2022] KEELRC 791 (KLR)", Case Analysis (2022). Not stated in the ruling extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/791/eng@2022-02-17

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