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ELRCStruck OutPetition dated November 25, 2021· [2022] KEELRC 1518 (KLR)

Nasurutia v Kiboi & 6 others (Employment and Labour Relations Petition E013 of 2021) [2022] KEELRC 1518 (KLR)

Employment and Labour Relations Court
5 May 2022
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a challenge to Bungoma county hires because the petitioner skipped the required appeal to the Public Service Commission first.

What this practically means

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Executive summary

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The Petitioner filed a petition dated November 25, 2021 challenging the recruitment by the Bungoma County Public Service Board of six village administrators for Elgon Ward, all allegedly drawn from one community, and sought declarations that the recruitment was unconstitutional, that the employment of one Metrin Temko Kiboi was null and void, an order of quashing, and costs. The 7th Respondent filed a preliminary objection dated February 3, 2022 contending that the court lacked jurisdiction because Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act require an aggrieved person to appeal to the Public Service Commission before filing proceedings in court. The Petitioner argued that constitutional supremacy and the Mutunga Rules preserved the court's jurisdiction. Canvassed by written submissions, the court held that the Court of Appeal in Secretary County Public Service Board v Hulbal Gedi Abdille settled that the Section 77 procedure must be exhausted before court intervention, and that this court has no jurisdiction over appeals from recruitment and appointments by County Public Service Boards. The court found the impugned employment was a decision of the Bungoma County Public Service Board, not the 7th Respondent, and followed its own earlier decision in Oliver Mukhebi concerning the same recruitment. The preliminary objection was upheld, the petition struck out, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the court has jurisdiction to entertain the constitutional petition notwithstanding the alternative appeal mechanism under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act

Holding

The court lacks jurisdiction; the petitioner was required to exhaust the appeal to the Public Service Commission before approaching the court.

Reasoning

The Court of Appeal in Secretary County Public Service Board v Hulbal Gedi Abdille settled that the dispute resolution mechanism under Section 77 of the County Governments Act must be exhausted before court intervention. The impugned employment of the six village administrators was a decision of the Bungoma County Public Service Board pursuant to its advertisement, so any challenge lay by appeal to the Public Service Commission. This court, being bound by that authority and by its own earlier decision in Oliver Mukhebi, upheld the preliminary objection.

p. 4
02

Whether the impugned recruitment was a decision of the 7th Respondent or of the County Public Service Board

Holding

It was a decision of the Bungoma County Public Service Board, not the 7th Respondent.

Reasoning

The advertisement inviting applications for 236 village administrators was published by the Bungoma County Public Service Board, interviews were conducted by it, and the court found the impugned employment flowed from that recruitment process, meaning the proper appellate forum lay before the Public Service Commission under Section 77 of the County Governments Act.

p. 4

Legal principles established

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  • The procedure under Section 77 of the County Governments Act must be exhausted before court intervention is invoked
  • The ELRC has no jurisdiction over appeals from recruitment and appointments by County Public Service Boards

Court orders

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  1. 1.The notice of preliminary objection dated February 3, 2022 by the 7th Respondent is upheld
  2. 2.The petition dated November 25, 2021 is struck out
  3. 3.Each party to bear own costs in the Notice of Preliminary Objection and the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 22(1)
  • Constitution of KenyaArticle 2
  • Constitution of KenyaArticle 234(2)(1)
  • County Governments ActSection 77(1) and (2)
  • Public Service Commission ActSection 87(2)
  • Constitution of Kenya (Protection of Human Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Mutunga Rules
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1)(5) and (6)

Cases cited (8)

  • Secretary County Public Service Board and another v Hulbal Gedi Abdille
    [2017] eKLR
  • Martin Kabubii Mwangi v County Government of Laikipia
    [2019] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • James Tunai Murete v County Government of Kajiado & 22 others
    [2015] eKLR
  • Junet Mohammed Ibrahim & another v County Government of Mandera & 3 others
    [2019] eKLR
  • Fred Marmelei Loronyokwe v County Government of Samburu & another
    [2020] eKLR
  • Chrispinus Likuyuni Lumiti v County Chief Officer Public Service Kakamega County and 3 others
    [2021] eKLR
  • Oliver Mukhebi & 28 others v County Public Service Board of Bungoma & another
    [2022] eKLR
Jurisdiction invoked
Article 23 of the Constitution and the Constitution of Kenya (Protection of Human Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules); Rule 17(1)(5) and (6) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Nasurutia v Kiboi & 6 others (Employment and Labour Relations Petition E013 of 2021) [2022] KEELRC 1518 (KLR)", Case Analysis (2022). Petition dated November 25, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1518/eng@2022-05-05

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