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ELRCDismissedPetition dated 15th March 2022· [2022] KEELRC 1155 (KLR)

Abdi v Governor, Kakamega County Government & 2 others (Employment and Labour Relations Court Appeal E004 of 2022) [2022] KEELRC 1155 (KLR)

Employment and Labour Relations Court
14 July 2022
2,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Employment and Labour Relations Court at Bungoma determines a Notice of Preliminary Objection dated 28th April 2022 by the Respondents in a petition filed on 15th March 2022 challenging the Petitioner's suspension. The Respondents argued that the court lacked jurisdiction because the Petitioner ought first to have exhausted internal employee dispute resolution mechanisms, notably appeal to the Public Service Commission under Article 234 of the Constitution, Section 77 of the County Governments Act, Sections 85 and 87 of the Public Service Commission Act, and the applicable Human Resources Policies and Procedures Manuals, rendering the suit premature and an abuse of process. The court, applying the Owners of the Motor Vessel 'Lilian S' jurisdictional principle as endorsed by the Supreme Court, and the Mukisa Biscuits definition of a preliminary objection as endorsed in IEBC v Jane Cheperenger, held that the objection was not a pure point of law. Facts central to the objection - who employs the Petitioner and which respondent holds disciplinary control - had to be ascertained by evidence, especially since the Respondents had not filed a substantive response. The court affirmed that challenges to County Public Service Board decisions must first go to the Public Service Commission, but held it was not settled that the Petitioner was such an employee, and that the ELRC retains original jurisdiction in employment disputes. The 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

The objection failed because it required ascertainment of facts, notably who employs the Petitioner and which respondent exercises disciplinary control

Reasoning

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.

p. 5
02

Whether failure to exhaust statutory appeal mechanisms to the Public Service Commission ousts the court's jurisdiction

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 28th April 2022 is dismissed for being improperly raised
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)
  • Constitution of KenyaArticle 235(1)(c)
  • County Governments ActSection 77
  • Public Service Commission ActSections 85(c) and 87(2)
  • Human Resources Policies and Procedures Manual for the Public Service 2016Section K, K.10(1)
  • Kakamega County Human Resources Policies and Procedures Manual 2016Clause P.11
  • Kakamega County Water ActSection 13
  • Kakamega County Public Service Board Act 2017Section 6(3)

Cases cited (10)

  • Owners of the Motor Vessel 'Lilian S' vs Caltex Oil (Kenya) Ltd
    1989 eKLR
  • In Re The Matter of the Interim Independent Electoral Commission
    (2011) eKLR
  • Kenya National Union of Nurses v County Government of Kirinyaga & 6 others
    (2020) eKLR
  • Turkana County Government & 20 others v Attorney General and 4 others
    Kisumu ELRC No. E023 of 2020
  • Lukale Moses Sande v County Government of Kakamega & 3 others
  • Dominic Chugani Muteshi v County Government of Kakamega & Another
    (2021) eKLR
  • Mark Gerald Brierley & 2 others v Drifthood Beach Club Ltd
    (2007) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors
    (1969) EA 696
  • Independent Electoral & Boundaries Commission vs Jane Cheperenger and 2 others
    (2015) eKLR
  • Hassan Ali Joho & Another vs Suleiman Said Shalbal & 2 others
    Petition No. 10 of 2013 (2014) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.