Abdi v Governor, Kakamega County Government & 2 others (Employment and Labour Relations Court Appeal E004 of 2022) [2022] KEELRC 1155 (KLR)
The bottom line
#The Employment Court dismissed the County Government's attempt to strike out an employee's petition, ruling that a preliminary objection cannot succeed where key facts are still in dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuits threshold
The objection failed because it required ascertainment of facts, notably who employs the Petitioner and which respondent exercises disciplinary control
The court applied the Mukisa Biscuits definition, upheld in Drifthood Beach Club and endorsed by the Supreme Court in IEBC v Cheperenger, that a preliminary objection must be a pure point of law argued on the assumption that pleaded facts are correct. Here the terms of employment and the disciplinary process had to be established by evidence, and the Respondents had not yet filed a substantive response, so facts were not settled.
Whether failure to exhaust statutory appeal mechanisms to the Public Service Commission ousts the court's jurisdiction
Exhaustion applies only where it is established that the Petitioner is an employee under the County Public Service Board; that fact is unsettled, so the court retains original jurisdiction
The court accepted that challenges to County Public Service Board decisions must first be appealed to the Public Service Commission under Section 77 of the County Governments Act. However, in this case it is not a settled fact that the Petitioner falls under the Kakamega County Service Board, given the 2nd Respondent's own HR Manual governing discipline. The court therefore has original jurisdiction to determine the employment issue on merit.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction must down its tools
- A preliminary objection must be a pure point of law and cannot be raised where facts have to be ascertained
- The ELRC has original jurisdiction in employment disputes and cedes it only where facts are ascertained and alternative remedies apply
Court orders
#- 1.The Notice of Preliminary Objection dated 28th April 2022 is dismissed for being improperly raised
- 2.Costs in the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution (original jurisdiction of the ELRC in employment disputes) - the court held it 'has original jurisdiction in all employment disputes'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Abdi v Governor, Kakamega County Government & 2 others (Employment and Labour Relations Court Appeal E004 of 2022) [2022] KEELRC 1155 (KLR)", Case Analysis (2022). Petition dated 15th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1155/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.