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ELRCStruck OutPetition No 38 of 2020· [2022] KEELRC 1009 (KLR)

Evans Ladtema Muswahili v Vihiga County Public Service Board [2022] KEELRC 1009 (KLR)

Employment and Labour Relations Court
26 January 2022
RSRadido Stephen
798 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, a public/human rights defender in Vihiga County, petitioned in December 2020 alleging that the County Public Service Board, Vihiga was operating unlawfully for failing to develop a County Human Capital/Human Resource Plan, contrary to Article 235(1) of the Constitution, section 59(1)(g) of the County Governments Act and Regulation 119(2) of the Public Finance (County Governments) Regulations, 2015. He sought declarations that the Board could not lawfully recruit without such a plan, a declaration that the Board's advertisement of 12 October 2020 and any resulting recruitment were unconstitutional and void, and certiorari to quash them. The High Court declined jurisdiction and transferred the matter to the Employment and Labour Relations Court. The Court directed the parties to address a jurisdictional question anchored on Article 234(2)(i) of the Constitution as read with section 77 of the County Governments Act and sections 85, 86 and 87 of the Public Service Commission Act. The Petitioner argued the PSC's appellate route applied only to disciplinary control; the Board countered that the dispute concerned its recruitment and terms-of-service functions, which required recourse to the PSC in the first instance, and that no constitutional question arose. The Court held that the PSC's mandate extends beyond disciplinary matters to recruitment and conditions of service, that the Petitioner should have exhausted that avenue, and that the human resource plan issue was not a constitutional question. Noting the orders would affect non-party boards, the Court declined jurisdiction and struck out the Petition with no order on costs.

Key legal issues

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01

Exhaustion of alternative remedies before the Public Service Commission

Holding

The Petitioner invoked the Court's jurisdiction prematurely because the challenge concerned recruitment, a function within the PSC's appellate mandate under Article 234(2)(i) and section 77 of the County Governments Act

Reasoning

The Court held the PSC's mandate under Article 234(2)(i) is not limited to disciplinary control but extends, via section 77(2) of the County Governments Act, to recruitment, selection, appointment, qualifications, remuneration and terms and conditions of service. Since the Petitioner's complaint centred on a recruitment advertisement, he should have gone to the PSC first before invoking the Court's jurisdiction.

p. 2
02

Whether absence of a County Human Resource Plan is a constitutional question

Holding

It is not; it is a matter resolvable in the ordinary way

Reasoning

The Court examined the functions of a County Public Service Board under section 59 of the County Governments Act and agreed with the Board that facilitation of the development of a human resource plan is not a constitutional requirement. The dispute was therefore not properly framed as a constitutional petition.

p. 2
03

Polycentric orders affecting non-parties

Holding

Orders with ramifications for non-party county public service boards should not be made without hearing those affected

Reasoning

The Petitioner's sought orders would have adversely affected other county public service boards not joined to the litigation. The Court held that caution dictates such orders should not be made lightly without affording all likely affected parties an opportunity to be heard.

p. 2

Legal principles established

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  • The Public Service Commission's mandate under Article 234(2)(i) extends beyond disciplinary control appeals to recruitment, appointment, qualifications, remuneration and terms and conditions of service in county governments
  • A litigant must exhaust the appellate process before the Public Service Commission before invoking the Court's jurisdiction over county public service disputes

Court orders

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  1. 1.The Court declines jurisdiction
  2. 2.The Petition is struck out
  3. 3.No order on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 235(1)
  • Constitution of Kenya, 2010Article 234(2)(i)
  • County Governments ActSection 59(1)(g)
  • County Governments ActSection 77(2)
  • Public Service Commission ActSections 85, 86 and 87
  • Public Finance (County Governments) Regulations, 2015Regulation 119(2)
On appeal from
High Court
Jurisdiction invoked
Article 162(2) of the Constitution as read with Article 234(2)(i) and section 77 of the County Governments Act (Petition transferred from the High Court to this Court)

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, "Evans Ladtema Muswahili v Vihiga County Public Service Board [2022] KEELRC 1009 (KLR)", Case Analysis (2022). Petition No 38 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1009/eng@2022-01-26

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