Agava v Otiichlo & 2 others (Employment and Labour Relations Petition 6 of 2023) [2023] KEELRC 1099 (KLR)
The bottom line
#A former Vihiga County official lost his job dispute because he had to appeal through the Public Service Commission before going to court.
What this practically means
#Executive summary
#Key legal issues
#Properly of the preliminary objection
The objection was properly raised as a pure point of law on jurisdiction
The petitioner argued, citing Mukisa Biscuits, that a preliminary objection cannot lie where facts must be ascertained. The court found the objection raised a clear point of law - whether the court had jurisdiction over an employment dispute given sections 77 of the County Governments Act and 87(2) of the Public Service Commission Act - and it was not disputed the case arose from the petitioner's employment as County Chief Officer.
First-instance jurisdiction and exhaustion
The court lacks first-instance jurisdiction; the statutory appeal mechanism to the Public Service Commission must be exhausted
Relying on Court of Appeal decisions including Hulbhai Gedi Abdille and the Nakuru County Assembly appeals, the court held section 87(2) is couched in mandatory terms and ousts court jurisdiction in the first instance. The Khaemba exceptional-circumstances exception was distinguished because the petitioner had not challenged Commission procedures as tainted by illegality and the Governor is not a quasi-judicial body.
Threshold of the constitutional petition
The petition is an everyday employment dispute that should be pursued under the Employment Act and section 12 of the ELRC Act, not constitutional jurisdiction
Following Rika J in George S Onyango, the court held that where a fundamental right is regulated by legislation such as the Employment Act, the legislation is the primary means of giving effect to the constitutional right. The declaratory and compensation reliefs sought are all available under section 12(3) of the ELRC Act.
Application to set aside conservatory order
Allowed; the March 28, 2023 conservatory order was a nullity for want of jurisdiction
Having found no first-instance jurisdiction, the court held the temporary conservatory order issued before any substantive response was filed was issued without jurisdiction and therefore a nullity, and set it aside.
Legal principles established
#- A person must exhaust the appeal procedure under Part XV of the Public Service Commission Act before filing court proceedings on county government public service matters - section 87(2) ousts court jurisdiction in the first instance
- Where there is a clear procedure prescribed by the Constitution or an Act of Parliament for redress of a grievance, that procedure must be strictly followed
- Jurisdiction flows from the Constitution or legislation and cannot be assumed beyond what the law confers
- An order issued without jurisdiction is a nullity
Court orders
#- 1.The notice of preliminary objection dated March 27, 2023 is upheld
- 2.The petition dated March 13, 2023 and the application thereunder of even date are dismissed for lack of jurisdiction
- 3.The application of April 18, 2023 is allowed and the temporary conservatory order issued on March 28, 2023 is set aside
- 4.Each party to bear own costs in the petition and application
- 5.The petitioner to be supplied with typed and certified copies of the proceedings and the ruling on payment of requisite fees
- 6.The petitioner is granted leave to appeal against the ruling; no stay ordered
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution as invoked by the petitioner; court held jurisdiction ousted by section 77 County Governments Act and section 87(2) Public Service Commission Act (exhaustion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agava v Otiichlo & 2 others (Employment and Labour Relations Petition 6 of 2023) [2023] KEELRC 1099 (KLR)", Case Analysis (2023). Petition dated March 13, 2023 (ELRC Kisumu/Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1099/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.