Akubu v County Secretary, County Government of Meru & 4 others (Employment and Labour Relations Petition E008 of 2023) [2023] KEELRC 1591 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the objections raise pure points of law
They do; jurisdiction, exhaustion and pleading competence require no ascertainment of facts or exercise of discretion
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.
Whether the court lacks jurisdiction for want of exhaustion of the PSC appeal mechanism
The court retains jurisdiction to review the legitimacy, as opposed to the merits, of a County PSB decision
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.
Whether the petition meets the Anarita Karimi Njeru competence threshold
It does; constitutional provisions allegedly violated and the manner of violation were pleaded with sufficient precision
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.
Legal principles established
#- 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
#- 1.The two notices of preliminary objection dated 14th June 2023 and 15th June 2023 are dismissed with costs
- Jurisdiction invoked
- Article 162(2)(a) and 165 of the Constitution; Employment and Labour Relations Court Act, section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.