Nasurutia v Kiboi & 6 others (Employment and Labour Relations Petition E013 of 2021) [2022] KEELRC 1518 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The court lacks jurisdiction; the petitioner was required to exhaust the appeal to the Public Service Commission before approaching the court.
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.
Whether the impugned recruitment was a decision of the 7th Respondent or of the County Public Service Board
It was a decision of the Bungoma County Public Service Board, not the 7th Respondent.
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.
Legal principles established
#- 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
#- 1.The notice of preliminary objection dated February 3, 2022 by the 7th Respondent is upheld
- 2.The petition dated November 25, 2021 is struck out
- 3.Each party to bear own costs in the Notice of Preliminary Objection and the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.