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ELRCDismissedNot stated in the judgment· [2023] KEELRC 1561 (KLR)

Oloo v Governor Homabay County & 3 others (Petition E044 of 2022) [2023] KEELRC 1561 (KLR)

Employment and Labour Relations Court of Kenya at Kisumu
29 June 2023
CBC. N. Baari
3,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a challenge to Homa Bay County appointments because the petitioner skipped the mandatory appeal to the Public Service Commission first.

What this practically means

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Executive summary

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The Petitioner challenged, by constitutional petition dated 8th November 2022, a press release of 11th October 2022 by the Governor of Homa Bay County announcing the appointment of twenty-one officers as Advisors, Liaison Officers and officers of the Governor's Delivery Unit. He sought declarations that the appointments were unconstitutional and unlawful, contravened Sections 5, 7 and 16 of the Office of the County Attorney Act (regarding Dr. Sylas Jakakimba's appointment as Advisor, Legal Affairs), breached the two-thirds gender rule and affirmative action requirements, exceeded the CEC limit under Article 179(3)(b), and were made without the County Public Service Board's authority; plus judicial review orders of certiorari, prohibition and mandamus. The Respondents opposed, arguing the Court lacked jurisdiction because employment disputes in county public service must first go on appeal to the Public Service Commission under Article 234(2)(i), Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, per the doctrine of exhaustion, and that the petitioner had not proved his case. The Court framed two issues: jurisdiction and whether the appointments violated the law. Applying Owners of Motor Vessel 'Lillian S' and Secretary County Public Service Board v Hulbhai Gedi Abdille, it held the dispute fell within the PSC's appellate jurisdiction in the first instance, that the exhaustion doctrine ousted the Court's jurisdiction, and dismissed the petition entirely without reaching the merits. Since the petition was brought in the public interest, it made no orders on costs. Judgment was delivered at Kisumu on 29th June 2023 by C. N. Baari, J.

Key legal issues

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01

Whether the Court has jurisdiction to entertain the petition challenging county appointments

Holding

The Court lacks jurisdiction; the matters fall within the appellate jurisdiction of the Public Service Commission under Article 234(2)(i), Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, and the petitioner bypassed that procedure contrary to the doctrine of exhaustion.

Reasoning

The Court held that disputes over appointments in the county public service - including the appointment of Advisors, Liaison Officers and Governor's Delivery Unit officers - must first be appealed to the Public Service Commission. Section 87(2) of the Public Service Commission Act bars filing court proceedings on such matters without exhausting the Commission's procedure. Judicial precedent, including Secretary County Public Service Board v Hulbhai Gedi Abdille, confirms the mandatory nature of that avenue. Having bypassed it, the petitioner's petition could not be entertained.

p. 7
02

Whether the appointments of Advisors, Liaison Officers and Governor's Delivery Unit officers violated the law

Holding

Not determined, as the Court declined jurisdiction and dismissed the petition without reaching the merits.

Reasoning

Having found the petition barred by the doctrine of exhaustion, the Court did not adjudicate the merits of the gender-rule, establishment-of-offices, or Office of the County Attorney Act allegations. The second framed issue was left unresolved; the dismissal was entirely on jurisdictional grounds.

p. 7

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution and Acts of Parliament, that procedure must be strictly followed before resorting to court
  • The requirement to appeal to the Public Service Commission on matters arising from the county government public service is mandatory and ousts the High Court/ELRC jurisdiction in the first instance
  • Jurisdiction is foundational; a court without jurisdiction must stop proceedings

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.No orders on costs, the petition having been brought in the public interest

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27(3)(4), 27(8), 56, 159(2)(c), 179(3)(b), 232, 234(2)(i), 235(1)
  • County Government ActSections 59, 59(4), 59(A), 62, 63, 65, 65(a), 66, 75, 77(1) & (2)(c), 88
  • Public Service Commission ActSections 87(2)
  • Office of the County Attorney Act, No. 14 of 2020Sections 5, 7, 16

Cases cited (8)

  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    [1989] eKLR
  • Duncan Kariuki Gitau & 2 Others v Lamu County Public Service Board & another
    [2021] eKLR
  • Tom Kusienya & 11 Others v Kenya Railways Corporation & 2 Others
    Constitutional Petition no 353 of 2012 [2013] eKLR
  • Narok County Council v Transmara County Council & another
    Civil Appeal no 25 of 2000 [2000] eKLR
  • Speaker of National Assembly v James Njenga Karume
    Civil Application no 92 of 1992 [1992] eKLR
  • Wilkinson v Barking Cooperation
    [1948] 1 KB 721
  • Lukale Moses Sande v the County Government of Kakamega & 3 Others
    Cause no 23 of 2020
  • Secretary County Public Service Board and Another v Hulbhai Gedi Abdille
    [2017] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Constitution of Kenya, 2010); challenge to jurisdiction under Article 234(2)(i), Section 77 of the County Government 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, "Oloo v Governor Homabay County & 3 others (Petition E044 of 2022) [2023] KEELRC 1561 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1561/eng@2023-06-29

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