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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1591 (KLR)

Akubu v County Secretary, County Government of Meru & 4 others (Employment and Labour Relations Petition E008 of 2023) [2023] KEELRC 1591 (KLR)

Employment and Labour Relations Court
4 July 2023
3,898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear challenges to county hiring decisions marred by unfairness, even before an internal appeal is finished.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Nyeri, delivered by Onesmus N Makau J on 4 July 2023, determines two notices of preliminary objection dated 14 and 15 June 2023 by the respondents, seeking striking out of the petitioner's constitutional petition with costs. The petitioner, formerly Senior Licensing and Compliance Officer, challenged the revocation of his appointment, made after his diploma certificate was verified at the wrong institution (KIPS instead of KIBS) and found fraudulent, without a show cause letter or hearing. The respondents argued that the court lacked jurisdiction because sections 77 of the County Government Act and 85 and 87(2) of the Public Service Commission Act require appeals to the Public Service Commission to be exhausted first, and that the petition failed the Anarita Karimi Njeru competence threshold. The court framed three issues: whether the objections raise pure points of law (held yes, applying Mukisa Biscuits); whether the court lacks jurisdiction; and whether the pleading is competent. Relying on Fleur Investments and Kisumu County Public Service Board v Okuro, the court held that although the statutory appeal mechanism postpones the court's jurisdiction as to merits, the court retains power to review the legitimacy of a County PSB decision on grounds of illegality, irrationality and procedural impropriety; the Nakuru County Assembly ouster reading was confined to merits. The petition was also found to plead constitutional violations with sufficient precision. Both objections were dismissed with costs.

Key legal issues

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01

Whether the objections raise pure points of law

Holding

They do; jurisdiction, exhaustion and pleading competence require no ascertainment of facts or exercise of discretion

Reasoning

Applying Mukisa Biscuits, the court found the three grounds - lack of jurisdiction under section 77 CGA and section 87(2) PSC Act, prematurity/exhaustion, and the Anarita Karimi Njeru competence threshold - pure points of law determinable without evidence or judicial discretion, and capable of disposing of the suit.

p. 4
02

Whether the court lacks jurisdiction for want of exhaustion of the PSC appeal mechanism

Holding

The court retains jurisdiction to review the legitimacy, as opposed to the merits, of a County PSB decision

Reasoning

While section 77 CGA and section 87(2) PSC Act postpone the court's jurisdiction until the appeal mechanism is exhausted, following Fleur Investments and Kisumu County Public Service Board v Okuro, the court may intervene where a decision is impugned on grounds of illegality, irrationality or procedural impropriety. The Nakuru County Assembly ouster reading was confined to merits.

p. 6
03

Whether the petition meets the Anarita Karimi Njeru competence threshold

Holding

It does; constitutional provisions allegedly violated and the manner of violation were pleaded with sufficient precision

Reasoning

The petitioner pleaded with precision the constitutional provisions allegedly infringed - Articles 28, 47 and 50 among others - and the manner of violation, namely revocation of appointment following a flawed certificate verification at the wrong institution without a show cause letter or hearing. The threshold for a constitutional pleading was therefore met.

p. 8

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • The ouster in section 87(2) of the PSC Act applies only to the merits of a County PSB decision, not to the legitimacy of that decision
  • The court may intervene before exhaustion of the statutory appeal mechanism where the challenge is to the legitimacy of a decision on grounds of illegality, irrationality or procedural impropriety

Court orders

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  1. 1.The two notices of preliminary objection dated 14th June 2023 and 15th June 2023 are dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 28, 41, 47, 48, 50, 73, 75, 159, 162(2)(a), 165, 165(5), 232, 234, 236
  • Public Service Commission ActSections 85, 87(2)
  • County Government Act, 2012Section 77
  • Employment and Labour Relations Court ActSection 12
  • Fair Administrative Action ActSection 9
  • Public Service Commission (County Government Services Appeals Procedure) RegulationsRegulation 8
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (15)

  • Anarita Karimi Njeru v Republic
    [1979] 1 KLR 154
  • The Clerk, Nakuru County Assembly & 2 others v Kenneth Odongo & 3 others
    [2023] eKLR
  • Alfred Sifa Dena v Benjamin Kai Chilumo
    [2020] eKLR
  • James Tanai Murete v County Government of Kajiado & others
    [2015] eKLR
  • John Kakindu Makau v County Government of Makueni & 6 others
  • James Orre v Office of the Governor, County Government of Marsabit & another
    [2022] eKLR
  • Thuranira Salesio Mutua v County Public Service Board & 2 others
    [219] eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdile
    [2016] eKLR
  • Republic v Independent Electoral and Boundaries Commission Exparte NASA
    [2017] eKLR
  • Republic v National Environment Management Authority Exparte Sound Equipment Ltd
  • Fleur Investments Ltd v Commission of Domestic Taxes & another
    [2018] eKLR
  • Joseph Kathure Mberia & another v County Government of Meru
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 699
  • Municipal Council of Mombasa v Republic & Umoja Consultant Ltd
    [2002] eKLR
  • Kisumu County Public Service Board & another v Samuel Okuro & 7 others
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(a) and 165 of the Constitution; Employment and Labour Relations Court Act, section 12

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, "Akubu v County Secretary, County Government of Meru & 4 others (Employment and Labour Relations Petition E008 of 2023) [2023] KEELRC 1591 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1591/eng@2023-07-04

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