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ELRCStruck OutCause No E003 of 2022· [2023] KEELRC 967 (KLR)

Idris v County Government of Mombasa & 2 others (Cause E003 of 2022) [2023] KEELRC 967 (KLR)

Employment and Labour Relations Court
17 April 2023
ANAGNES KITIKU NZEI
2,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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County government employees in Kenya must appeal to the Public Service Commission before suing in the Employment Court, or their case will be struck out.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Mombasa County Government as political advisor (2013), Sub-County Administrator/County Administration Coordinator (2016) and Security Advisor to the Governor (2018), sued after receiving a letter dated 30th November 2021 terminating his appointment as Security Advisor for alleged desertion of work. He sought a declaration that the termination was null and void, reinstatement, or alternatively damages including notice pay, salary to the end of his contract, gratuity, twelve months' compensation and a certificate of service, contending breaches of Articles 41, 47, 50 and 236 of the Constitution and sections 41, 43 and 45 of the Employment Act. The 1st and 2nd Respondents raised a preliminary objection asserting that the Court lacked jurisdiction because the Claimant was a county public officer who ought first to have appealed to the Public Service Commission under section 77 of the County Governments Act, and that any challenge thereafter lay only in judicial review. The Court, per Agnes Kitiku Nzei, J, held that section 77(2), read with section 77(2)(g), obliges an aggrieved county employee to appeal to the Commission regardless of who effected the termination, and that section 87(2) of the Public Service Commission Act bars court proceedings before that procedure is exhausted. Applying Hulbhai Gedi Abdille, Karume and Owners of Motor Vessel 'Lilian S', the Court upheld grounds (a), (b) and (e) of the objection, dismissed grounds (c) and (d) as not constituting preliminary objections under Mukisa Biscuits, struck out the suit with no orders as to costs, without determining the merits of the termination.

Key legal issues

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01

Whether the suit was prematurely filed for want of exhaustion of the statutory appeal to the Public Service Commission

Holding

Yes - the Claimant, a county public officer terminated in purported exercise of disciplinary control, was bound to appeal to the Public Service Commission under section 77(1) and (2) of the County Governments Act before coming to court; the Court declined jurisdiction

Reasoning

Section 77(2) mandates the Commission to entertain appeals from any decision relating to county government employment, widened by section 77(2)(g). The termination was effected by the 1st Respondent in purported exercise of disciplinary control, falling within section 77(1). Section 87(2) of the Public Service Commission Act expressly prohibits court proceedings before exhaustion. The Court of Appeal in Hulbhai Gedi Abdille confirms this is a specialised jurisdiction that must be invoked first.

p. 4
02

Which grounds of the preliminary objection are properly a preliminary objection in law

Holding

Grounds (a), (b) and (e) were upheld as pure points of law; grounds (c) and (d) were dismissed because they fall outside the Mukisa Biscuits definition

Reasoning

Applying the Mukisa Biscuits test, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. Grounds (c) and (d) failed that test, but grounds (a), (b) and (e) on jurisdiction and prematurity sufficed to dispose of the suit.

p. 6

Legal principles established

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  • A county government employee aggrieved by a termination decision must first appeal to the Public Service Commission under section 77 of the County Governments Act before filing suit in court
  • Section 87(2) of the Public Service Commission Act bars court proceedings where the statutory appeal procedure has not been exhausted
  • A court without jurisdiction must down its tools

Court orders

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  1. 1.The 1st and 2nd Respondents' Preliminary Objection upheld in terms of grounds (a), (b) and (e)
  2. 2.Grounds (c) and (d) of the Preliminary Objection dismissed
  3. 3.The Claimant's suit struck out

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 24, 41, 47, 50, 222, 236
  • Employment Act, 2007Sections 41, 43, 45, 51
  • County Governments Act, No. 17 of 2012Sections 45, 59(1)(c), 77(1) & (2)
  • Public Service Commission ActSection 87(2)
  • Civil Procedure RulesOrder 53

Cases cited (5)

  • Secretary, Public Service Board & Another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Republic v National Environment Management Authority
  • Owners Of Motor Vessel ‘lilian S’ v Caltex Oil [Kenya] Limited
    [1989] KLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A 696
Jurisdiction invoked
Sections 77(1) & (2) of the County Governments Act and section 87(2) of the Public Service Commission Act - exhaustion of statutory appellate remedies before the Public Service Commission

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, "Idris v County Government of Mombasa & 2 others (Cause E003 of 2022) [2023] KEELRC 967 (KLR)", Case Analysis (2023). Cause No E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/967/eng@2023-04-17

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