Hynes & 4 others v Vihiga County Government (Claim 76 of 2021) [2022] KEELRC 1551 (KLR)
The bottom line
#Vihiga County's attempt to shut down a workers' court case early failed because the county had not yet filed its defence, so the case proceeds to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly raised under the Mukisa Biscuits standard
The preliminary objection was prematurely and improperly raised because the facts were not settled - the Respondent had not filed its defence and had not accepted the facts as pleaded by the Claimant.
The court reiterated the Mukisa Biscuits definition of a preliminary objection as a pure point of law argued on the assumption that all facts pleaded are correct. On perusal of the file, the Respondent had not yet filed its defence in the claim or the related matters. Since submissions are not pleadings and the facts were not settled, the Respondent had not demonstrated acceptance of the pleaded facts, rendering the objection premature and improper.
Whether the court lacked jurisdiction in favour of the appellate jurisdiction of the Public Service Commission under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act
The court did not reach a substantive determination on jurisdiction because the objection failed in limine as improperly raised; the Claim was left to proceed to hearing.
The Respondent argued that the Claim fell within the appellate jurisdiction of the Public Service Commission and that Section 87(2) of the Public Service Commission Act barred court proceedings before exhaustion of that process. The court recited the applicable statutory provisions and the exhaustion jurisprudence relied on by the Respondent, but having found the objection prematurely and improperly raised under the Mukisa Biscuits standard, it dismissed the notice without engaging the jurisdictional question on the merits.
Legal principles established
#- A preliminary objection must be raised on a pure point of law on the assumption that all facts pleaded by the opposing side are correct, and cannot be raised where facts are unsettled or disputed.
- Submissions are not pleadings; a respondent who has not filed a defence and has not accepted the facts as pleaded cannot properly raise a preliminary objection.
Court orders
#- 1.The Notice of Preliminary Objection is dismissed
- 2.This decision to apply to Bungoma ELRC Cause No. 89 of 2021, Bungoma ELRC Cause No. 85 of 2021 and ELRC Petition No. E003 of 2022
- 3.Costs in the cause
- 4.Parties to take steps towards the hearing of the dispute
- 5.Respondent granted leave of 21 days to file and serve response to the claims and petition; Claimant at liberty to file reply to response upon service
- 6.Parties to exchange agreed issues or file separate ones and ensure compliance with Order 11 of the Civil Procedure Rules
- 7.Pretrial directions date to be issued by court
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court), read with Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act as raised in the Preliminary Objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hynes & 4 others v Vihiga County Government (Claim 76 of 2021) [2022] KEELRC 1551 (KLR)", Case Analysis (2022). Bungoma ELRC Cause No. 89 of 2021 (with Bungoma ELRC Cause No. 85 of 2021 and ELRC Petition No. E003 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1551/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.