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ELRCStruck OutNot stated in the judgment text provided· [2022] KEELRC 4121 (KLR)

Monai & another v Kisii County Public Service Board & 2 others (Employment and Labour Relations Petition 3 of 2022) [2022] KEELRC 4121 (KLR)

Employment and Labour Relations Court
28 September 2022
RSRADIDO STEPHEN
870 words in judgment
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The bottom line

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The Employment and Labour Relations Court struck out a challenge to Kisii County board recruitment because the petitioners never first appealed to the Public Service Commission.

What this practically means

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Executive summary

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The petitioners challenged recruitment of a chairperson and member of the Kisii County Public Service Board, alleging recruitment of unqualified persons, appointments without advertisement or compliance with procedure, irregular promotions, failure to appoint a substantive board secretary, and disregard of regional balance and disability considerations. The respondents raised a preliminary objection on the territorial jurisdiction of the court sitting in Kericho and noted a pending petition in Kisumu raising the same issues; the file was transferred to the Kisumu court. The court framed the question as one of first-instance jurisdiction, holding that complaints concerning recruitment, appointment and terms of service in the county public service fall within the appellate function of the Public Service Commission under Article 234(2)(i) of the Constitution, section 77 of the County Governments Act, and that section 87(2) of the Public Service Commission Act defers judicial proceedings until the statutory appeal mechanism is exhausted. Relying on binding Court of Appeal decisions in Geoffrey Muthinja and Hulbhai Gedi Abdille, the court held the petitioners should have appealed to the Public Service Commission first. The court declined jurisdiction, struck out the petition and accompanying motion, and awarded costs to the respondents. Judgment was delivered virtually and signed at Kisumu on September 28, 2022 by Radido Stephen, Judge.

Key legal issues

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Exhaustion of alternative dispute resolution before the Public Service Commission

Holding

The petition was filed without exhausting the appeal procedure under Article 234(2)(i) of the Constitution, section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act; the court declined jurisdiction and struck out the petition.

Reasoning

The complaints concerned recruitment, appointment and terms of employment within the county public service. The Constitution vests the Public Service Commission with power to hear appeals over county recruitment decisions, and section 87(2) of the PSC Act defers commencement of judicial proceedings until the appeal mechanism in Part XV is exhausted. Binding Court of Appeal authority requires exhaustion of such mechanisms, making courts fora of last resort.

p. 3

Legal principles established

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  • Where an alternative dispute resolution mechanism exists, it must be exhausted before invoking the court's jurisdiction; courts are fora of last resort

Court orders

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  1. 1.The petition and accompanying motion are struck out
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)(i)
  • County Governments ActSection 77(2)(a), (e) and (g)
  • Public Service Commission ActSection 87(2); Part XV

Cases cited (2)

  • Geoffrey Muthinja & Ar v Samuel Muguna Henry & 1756 Ors
    (2015) eKLR
  • Secretary, County Public Service Board & Ar v Hulbhai Gedi Abdille
    (2017) eKLR
Jurisdiction invoked
Article 234(2)(i) of the Constitution; sections 77(2)(a), (e), (g) County Governments Act; section 87(2) Public Service Commission Act

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, "Monai & another v Kisii County Public Service Board & 2 others (Employment and Labour Relations Petition 3 of 2022) [2022] KEELRC 4121 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4121/eng@2022-09-28

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