Republic v Kakamega County Assembly Service Board; Simwa & another (Exparte Applicants); Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 513 (KLR)
The bottom line
#The Employment Court in Bungoma ruled it can directly hear county assembly workers' unfair employment claims without a required first appeal to the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 87(2) of the Public Service Commission Act ousts the court's jurisdiction over employment claims against County Assembly Service Boards
It does not; the Public Service Commission's jurisdiction under Article 234(2) and Sections 85 and 86 of the PSC Act extends only to county government (executive) public service employees, not to employees of County Assembly Service Boards
Applying the Supreme Court decision in Samuel Kamau Macharia, jurisdiction flows from the Constitution or legislation. The court found neither the Constitution nor the County Governments Act or the Public Service Commission Act gave the Public Service Commission jurisdiction over employees of County Assembly Service Boards, since the Commission is limited to executive county government employees, and extending it to Assembly Service Board employees would undermine the doctrine of separation of powers, which applies to both levels of government under Article 6.
Whether the decision in Sammy Kalundu v Ag. Clerk of the Nairobi City County Assembly applies
Distinguished and not followed; the court disagreed with the holding that Section 87(2) applies to employees of county assemblies
The court declined to follow the ELRC decision in Sammy Kalundu, holding it inconsistent with the doctrine of separation of powers between arms of government, and instead applied Justice Rika's decision in John Mwivithi Mutie v Speaker Kiambu County Assembly, which held that directing a petitioner to the Public Service Commission in such circumstances misapprehends separation of powers and distorts the objects and principles of devolution under Articles 174 and 175.
Whether the preliminary objection was properly raised and merited
It was properly raised as a pure point of law on jurisdiction but failed on the merits
Guided by Mukisa Biscuits, the court found the objection was based on points of law on jurisdiction and was properly raised. However, applying Speaker of the National Assembly v James Njenga Karume, where no clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure need not be exhausted; since no such mechanism exists for County Assembly Service Board employees, the objection lacked merit.
Whether the Hulbhai Gedi Abdille exhaustion principle applies to the Applicants
It does not; that decision concerned an employee of a County Public Service Board, not a County Assembly Service Board
The court found the Court of Appeal decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille, which requires exhaustion of the appellate procedure before the Public Service Commission, dealt with a County Public Service Board employee and is not relevant to the jurisdiction of the court in the instant suit.
Legal principles established
#- The court has original jurisdiction to hear and determine claims by employees against County Assembly Service Boards because no clear constitutional or statutory appeal mechanism exists for such grievances
Court orders
#- 1.The Notice of Preliminary Objection dated 9th January 2023 is dismissed for lack of merit with costs to the applicants in the cause
- 2.Mention on 22nd March 2023
- 3.Mr Kubai to serve the Exparte Applicant for hearing directions of the chamber summons
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and statute; issue was whether Article 234(2) of the Constitution and Sections 85, 86 and 87(2) of the Public Service Commission Act No. 10 of 2017 oust the Court's original jurisdiction over claims by employees of County Assembly Service Boards
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kakamega County Assembly Service Board; Simwa & another (Exparte Applicants); Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 513 (KLR)", Case Analysis (2023). Chamber Summons dated 13th December 2022 (Judicial Review leave application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/513/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.