Achuti & 27 others v County Government of Nakuru & another (Cause E039 of 2022) [2023] KEELRC 281 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers can sue counties directly without first appealing to the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to appeal to the Public Service Commission under section 77(1) and (2) of the County Governments Act ousts the Court's jurisdiction
The exhaustion objection fails because section 77(1) uses discretionary language ('may') and the provision cannot oust the Court's constitutional jurisdiction under Article 162(2)
The court examined section 77(1) and (2) of the County Governments Act and read subsection (1) as permissive rather than mandatory. It further held that even where the exhaustion doctrine applies, the statutory appellate route cannot curtail the jurisdiction conferred on the ELRC by Article 162(2) of the Constitution. The Claimants' complaints went to procedure and legality of termination, which per the authorities cited are matters for the Court rather than the Commission.
Whether the appointments by the County Secretary were illegal such that the suit should be struck out
The question of illegality of the appointments cannot be determined on a preliminary objection as it requires evidence
The Respondent argued that appointment powers vest exclusively in the County Public Service Board and that the County Secretary had no delegated authority under section 86 of the County Governments Act. The court held that ascertaining whether the appointments were made with authority requires fact-finding and analysis of the parties' evidence, which takes the objection outside the Mukisa Biscuit threshold of a pure point of law.
Legal principles established
#- Section 77(1) of the County Governments Act is not couched in mandatory terms and cannot oust the Court's original and appellate jurisdiction under Article 162(2) of the Constitution
- A preliminary objection cannot be sustained where the issue raised requires the calling and analysis of evidence
Court orders
#- 1.The preliminary objection dated November 30, 2022 is not merited and is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (original jurisdiction of the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achuti & 27 others v County Government of Nakuru & another (Cause E039 of 2022) [2023] KEELRC 281 (KLR)", Case Analysis (2023). Cause No E039 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/281/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.