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ELRCStruck OutNot disclosed in judgment· [2023] KEELRC 1281 (KLR)

Bore & 2 others v County Government of Nyamira; Makonge (Interested Party) (Petition E004 of 2023) [2023] KEELRC 1281 (KLR)

Employment and Labour Relations Court
24 May 2023
RSRadido Stephen
602 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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County government employees in Kenya must appeal to the Public Service Commission before going to the Employment and Labour Relations Court, or their case risks being struck out.

What this practically means

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Executive summary

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Three Petitioners petitioned the County Government of Nyamira on January 30, 2023, alleging unfair termination of their employment contracts on an undisclosed date, supported by a Motion under certificate of urgency. The initial Motion was dismissed after the Petitioners failed to attend the inter-partes hearing, and a second Motion with similar orders was filed and directed to be heard together with the Petition. The Respondent entered appearance but did not attend the virtual session. The Court directed the parties to address the threshold question of jurisdiction, and although the Petitioners' submissions were not filed by the agreed timeline of April 14, 2023, the Court proceeded to determine jurisdiction. The Court found that the Petitioners were employees within the county public service of Nyamira and that, under Article 234(2)(i) of the Constitution read with sections 77(1) and (2) of the County Governments Act and section 87(2) of the Public Service Commission Act, their first recourse was an appeal to the Public Service Commission of Kenya. Section 87(2) expressly outlaws first-instance court proceedings before appellate procedures are exhausted. Relying on the Court of Appeal's decision in Secretary, County Public Service Board and Anor vs Hulbhan Gedi Abdille (2017) eKLR, the Court held that the specialized appellate mechanism must be exhausted first. Finding nothing on record showing exhaustion, the Court declined jurisdiction, struck out the Petition and made no orders on costs. Judgment was delivered virtually in Kisumu on May 24, 2023 by Radido Stephen, Judge.

Key legal issues

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Whether the Court has jurisdiction over an unfair termination claim by county public service employees who did not appeal to the Public Service Commission

Holding

The Court lacks jurisdiction; the Petitioners' first port of call was an appeal to the Public Service Commission, and the petition is struck out

Reasoning

The Petitioners were employees within the county public service of Nyamira. Article 234(2)(i) of the Constitution, read with sections 77(1) and (2) of the County Governments Act and 87(2) of the Public Service Commission Act, gives the Public Service Commission appellate jurisdiction over decisions of county public service boards on disciplinary control or removal from service. Section 87(2) expressly outlaws first-instance court proceedings before that appellate route is exhausted, and nothing on record showed exhaustion.

p. 3

Legal principles established

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  • Where a statute creates a specialized appellate forum for disputes concerning county public service disciplinary decisions, that appellate procedure must be exhausted before a court's jurisdiction may be invoked
  • Section 87(2) of the Public Service Commission Act expressly outlaws first-instance court proceedings before appellate procedures have been exhausted

Court orders

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  1. 1.The Court declines jurisdiction
  2. 2.The Petition is struck out with no orders on costs

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)(i)
  • County Governments ActSection 77(1) and (2)
  • Public Service Commission Act, 2017Section 87(2)

Cases cited (1)

  • Secretary, County Public Service Board and Ar vs Hulbhan Gedi Abdille
    (2017) eKLR
Jurisdiction invoked
Article 234(2)(i) of the Constitution as read with section 77 of the County Governments Act and section 87(2) 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, "Bore & 2 others v County Government of Nyamira; Makonge (Interested Party) (Petition E004 of 2023) [2023] KEELRC 1281 (KLR)", Case Analysis (2023). Not disclosed in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1281/eng@2023-05-24

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