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ELRCStruck OutBungoma ELRC Petition No. E004 of 2023 (consolidated; petition dated February 14, 2023)· [2023] KEELRC 780 (KLR)

Welikhe v Lusaka & 3 others (Employment and Labour Relations Petition E003 of 2023) [2023] KEELRC 780 (KLR)

Employment and Labour Relations Court
23 March 2023
1,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Bungoma court struck out a County Secretary's challenge to his interdiction because he had to appeal to the Public Service Commission first.

What this practically means

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Executive summary

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The Petitioner, interdicted as County Secretary of Bungoma County by a letter dated February 3, 2023 authored by the Governor, filed a Petition on February 14, 2023 seeking declarations that the interdiction was unconstitutional (Articles 1, 2, 47 and 73), ultra vires Section 59 of the County Governments Act, and alternatively damages for breach of contract. Conservatory orders were granted on February 17, 2023. The Respondents filed a Notice of Preliminary Objection dated March 1, 2023 contending the Petition was premature and incompetent because, under Article 234(2)(i) of the Constitution read with Section 77 of the County Governments Act and Section 85 of the Public Service Commission Act, disciplinary disputes must first be determined by the Public Service Commission. The court canvassed the objection by written submissions. The Respondents relied on Fred Marmalei Loronyokwe and the Court of Appeal's decision in Hulbhai Gedi Abdille; the Petitioner relied principally on John Mwaniki, where a Governor's compulsory leave decision against a County Secretary was declared to have no legal basis. The court accepted it may intervene in internal disciplinary processes for illegality, and that only the Board can terminate the Petitioner's services. However, it held the impugned interdiction was a decision contemplated by Section 77(1) of the County Governments Act, which requires appeal to the Public Service Commission in the first instance, and that the Hulbhai Gedi Abdille decision was superior to John Mwaniki. The preliminary objection was allowed, conservatory orders were vacated, and the Petition - together with consolidated Petition No. E004 of 2023 - was struck out as premature. Each party was ordered to bear its own costs, with a right of appeal within 30 days.

Key legal issues

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01

Exhaustion of internal/statutory remedies before approaching the ELRC

Holding

The preliminary objection succeeded; the Petitioner, a county public officer interdicted by an authority within the county public service, was required to appeal to the Public Service Commission under Section 77 of the County Governments Act before filing the Petition

Reasoning

The court accepted it could intervene in internal disciplinary processes for illegality, but held that the interdiction letter dated February 3, 2023 was a decision exercising disciplinary control over a county public officer. Section 77(1) provides the appeal avenue to the Public Service Commission in the first instance. The Court of Appeal decision in Hulbhai Gedi Abdille, which the court treated as superior to the John Mwaniki decision relied on by the Petitioner, settled that the statutory appellate process must be followed absent exceptional circumstances.

p. 5
02

Whether only the County Public Service Board could discipline the County Secretary

Holding

The court agreed only the Board can terminate the Petitioner's services, but that did not cure the prematurity since the impugned interdiction still fell within Section 77(1)

Reasoning

The Petitioner argued the Governor assumed the Board's role in interdicting him, relying on John Mwaniki. The court accepted that only the Board can terminate the Petitioner's services, and that the impugned decision was by an authority within the County Public Service. Nonetheless, the interdiction was a decision contemplated by Section 77(1), so the dispute belonged before the Public Service Commission first.

p. 5

Legal principles established

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  • Under Section 77(1) of the County Governments Act, a person dissatisfied or affected by a decision of the County Public Service Board or a person exercising disciplinary control over a county public officer must first appeal to the Public Service Commission
  • The Public Service Commission has jurisdiction in the first instance in matters of disciplinary control over county public officers

Court orders

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  1. 1.Notice of Preliminary Objection dated March 1, 2023 allowed
  2. 2.Conservatory orders in place vacated
  3. 3.Petition dated February 14, 2023 struck out for being premature
  4. 4.Each party to bear own costs in the matter
  5. 5.Ruling to apply to Cause Petition No. E004 of 2023, which is also struck out for being premature, each party to bear own costs
  6. 6.Right of appeal in 30 days; certified typed proceedings and ruling to be availed to parties on payment of necessary fees

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(3), 2(1), 2(2), 2(4), 3(1), 47, 73, 162(2) (implied), 234(2)(i)
  • County Governments Act, 2012Sections 59, 77, 77(1)
  • Public Service Commission ActSections 85, 86, 87(2)

Cases cited (5)

  • Fred Marmalei Loronyokwe versus County Government of Samburu
    (2020) eKLR
  • Secretary, County Public Service Board & Another versus Hulbhai Gedi Abdille
    (2017) eKLR
  • Republic -vs- National Environment Management Authority
  • Ouko -vs- Kisumu County Public Service Board
    Petition No. E007 of 2020 (2022) eKLR
  • John Mwaniki -vs- Governor Irungu & Laikipia County Government
    (2017) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (ELRC jurisdiction); objection founded on Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act, 2012 and Section 85 of the 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, "Welikhe v Lusaka & 3 others (Employment and Labour Relations Petition E003 of 2023) [2023] KEELRC 780 (KLR)", Case Analysis (2023). Bungoma ELRC Petition No. E004 of 2023 (consolidated; petition dated February 14, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/780/eng@2023-03-23

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