Welikhe v Lusaka & 3 others (Employment and Labour Relations Petition E003 of 2023) [2023] KEELRC 780 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of internal/statutory remedies before approaching the ELRC
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
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.
Whether only the County Public Service Board could discipline the County Secretary
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)
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.
Legal principles established
#- 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
#- 1.Notice of Preliminary Objection dated March 1, 2023 allowed
- 2.Conservatory orders in place vacated
- 3.Petition dated February 14, 2023 struck out for being premature
- 4.Each party to bear own costs in the matter
- 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.Right of appeal in 30 days; certified typed proceedings and ruling to be availed to parties on payment of necessary fees
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.