Gikama v County Government Of Laikipia & 2 others (Cause 62 of 2016) [2022] KEELRC 4166 (KLR)
The bottom line
#Kenya's Employment Court ruled county employees can sue directly over unpaid dues without first appealing to the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether section 77 of the County Government Act, 2012 read with section 87(2) of the Public Service Commission Act ousted this court's jurisdiction over the claimants' employment claims
The preliminary objection on jurisdiction lacked merit. The claims concerned non-issuance of appointment letters and payment of arrears; no decision by the county public service board existed that could be appealed to the PSC, and section 77(1) is permissive rather than mandatory. The court's jurisdiction derives from article 162(2) of the Constitution and stands.
The court examined section 77 of the County Government Act, which allows appeals to the PSC against decisions of the county public service board. It found that the dispute before it concerned the non-issuance of appointment letters and payment of arrears - an inaction rather than a decision - so there was no appellable decision. It further held that section 77(1) uses discretionary language ('may'), imposing no compulsion to appeal. Since the court's jurisdiction springs from article 162(2) of the Constitution, closing out the claimants on a technicality would be an injustice, and the objection was dismissed.
Whether the consolidated causes are incurably and fatally defective and should be struck out
The claims are not incurably defective; striking out is a last resort and the claim should proceed to a hearing.
The respondent argued the causes were fatally defective for want of jurisdiction and should be struck out. The court, having found that jurisdiction existed and that the statutory appeal mechanism was not mandatory, declined to strike out the claims. It reasoned that closing out the claimants at that late stage on a technicality would amount to an injustice, found the preliminary objection devoid of merit, dismissed it, and directed that the claim proceed to its logical conclusion, with costs in the cause.
Legal principles established
#- Where no decision has been made by the county public service board, there is nothing capable of appeal to the Public Service Commission under section 77 of the County Government Act, and section 77(1) is not couched in mandatory terms.
- The jurisdiction of the Employment and Labour Relations Court flows from article 162(2) of the Constitution and any person with an employment or labour relations matter may approach the court for redress.
Court orders
#- 1.The preliminary objection dated May 19, 2022 is found to lack merit and is dismissed
- 2.The claims should accordingly proceed
- 3.Costs in the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya read with section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikama v County Government Of Laikipia & 2 others (Cause 62 of 2016) [2022] KEELRC 4166 (KLR)", Case Analysis (2022). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4166/eng@2022-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.