Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedMisc Application No E006 of 2023· [2023] KEELRC 1630 (KLR)

Marango & 4 others v County Public Service Board - Bungoma County & 3 others (Miscellaneous Application E006 of 2023) [2023] KEELRC 1630 (KLR)

Employment and Labour Relations Court
6 July 2023
4,903 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

The Kakamega Employment Court dismissed an attempt to block county chief officer appointments, confirming appeals over such nominees belong first with the Public Service Commission.

What this practically means

#

Executive summary

#
The Applicants sought interim conservatory orders to stop the 1st Respondent from issuing appointment letters to successful nominees for county chief officer positions (trade, energy and industrialization; public service and management; agriculture), pending an appeal. On 24th April 2023 the court issued temporary conservatory orders. The 1st, 3rd and 4th Respondents, and later the 2nd Respondent, filed preliminary objections contending that the court lacked jurisdiction under section 77 of the County Governments Act and sections 85, 86(1), 87(2) and 88(4) of the Public Service Commission Act, that the matter was sub judice given a parallel application before the Public Service Commission, that there was no substantive suit supporting interlocutory orders, and that the 3rd and 4th Respondents were improperly enjoined. The court framed five issues and held it had no first-instance jurisdiction, being bound by the Court of Appeal's recent decision in The Clerk, Nakuru County Assembly v Kenneth Odongo that the ELRC has no jurisdiction over county chief officer nominees who had not yet received appointment letters, as no employer-employee relationship existed. Relying on its own precedents in Oliver Mukhebi and Lukale Moses Sande, the court held that determining a prima facie case would usurp the Commission's jurisdiction; the application was also sub judice and could not stand without a substantive suit. Section 133 of the County Governments Act shielded the 3rd and 4th Respondents from personal liability and their suit was struck out. The preliminary objections were upheld, the Notice of Motion dismissed, and the interim conservatory orders set aside as a nullity, with each party bearing its own costs.

Key legal issues

#
01

First-instance jurisdiction of the ELRC over applications for conservatory orders concerning county chief officer recruitment pending appeal before the Public Service Commission

Holding

The court lacks jurisdiction where the subject matter is within the Public Service Commission's exclusive jurisdiction and where nominees are yet to be issued appointment letters

Reasoning

The court relied on its prior decisions in Oliver Mukhebi and Lukale Moses Sande and on the Court of Appeal's recent decision in The Clerk, Nakuru County Assembly v Kenneth Odongo holding that no employer-employee relationship exists for nominees whose vetting/appointment is incomplete. For the court to assess a prima facie case it would have to delve into the merits of an appeal vested in the Commission, thereby usurping its jurisdiction.

p. 8
02

Sub judice

Holding

The application was sub judice given a similar conservatory orders application pending before the Public Service Commission

Reasoning

The court noted it had no knowledge of the similar application dated 12th April 2023 before the Commission when it issued interim orders on 24th April 2023, as it was never disclosed. Once an appeal is pending before a competent body with constitutional and statutory jurisdiction, a parallel application in court on the same issue is barred by the res sub-judice doctrine.

p. 8
03

Whether a substantive action is required to support interlocutory orders

Holding

Interlocutory conservatory orders cannot issue without a substantive suit or petition

Reasoning

The court upheld its earlier decision in Lukale Moses Sande and relied on Wilson Kaberia Nkunja and SFA v AOA, and on Scope Telematics where M'Inoti J held that the manner of initiating a suit is the basis of jurisdiction and cannot be cured by Article 159 technicality provisions. Without an underlying petition, orders sought would be substantive relief granted in an interlocutory application.

p. 8
04

Whether the 3rd and 4th Respondents (Acting County Secretary and Governor) are properly enjoined

Holding

They are improperly joined; the suit against them is struck out

Reasoning

Section 133 of the County Government Act protects county officers acting in good faith from personal civil liability, and the County Secretary can only act under delegated authority of the County Public Service Board under Section 86. The court relied on John Mining Temoi and John Rimui Waweru.

p. 9
05

Whether the application dated 20th April 2023 was merited

Holding

Not merited; the interim conservatory orders issued on 24th April 2023 were a nullity and set aside

Reasoning

Having found no first-instance jurisdiction, the orders previously issued were devoid of jurisdiction and thus a nullity. The preliminary objections of 4th May 2023 and 19th May 2023 were accordingly upheld and the Notice of Motion dismissed.

p. 9

Legal principles established

#
  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Without jurisdiction a court cannot make any further step in proceedings
  • The ELRC has no jurisdiction over county chief officer nominees who are yet to receive appointment letters, per the Court of Appeal
  • Temporary injunction orders cannot be granted in vacuum without a substantive suit

Court orders

#
  1. 1.The Notices of Preliminary Objection dated 4th May 2023 and 19th May 2023 are upheld
  2. 2.The Notice of Motion application dated 20th April 2023 is dismissed for lack of jurisdiction
  3. 3.The interim conservatory orders of 24th April 2023 are set aside as a nullity
  4. 4.The suit against the 3rd and 4th Respondents is struck out
  5. 5.Each party to bear own costs in the application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 23(1) & (3)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 185
  • Constitution of Kenya, 2010Article 234(2)(1)
  • Public Service Commission ActSections 85, 86(1), 87(2), 88(4)
  • Public Service Commission (County Appeals Procedures) Regulations, 2022Regulations 8(1) & (2), 9, 13
  • County Governments Act, 2012Sections 77(1) & (2), 86, 133
  • Employment and Labour Relations Court ActSection 12(5)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)Rule 23
  • Employment and Labour Relations Act (Procedure Rules), 2016Rule 17(1)(5) and (6)

Cases cited (19)

  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    (1989)
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board and 6 others
    2015 eKLR
  • Martin Nyaga Wambora & Others v Speaker of the Debate & others
  • Oliver Mukhebi & 28 others v County Public Service Board of Bungoma & Another
    (2022) eKLR, Bungoma ELRC No. E012 of 2021
  • Lukale Moses Sande v Governor, County of Kakamega & 3 others
    [2022] eKLR
  • Zena Achieng Mohammed v County Public Service Board of Kilifi and 6 others
    (2021) eKLR
  • Shkalla v Albania
  • Geofirey Muthinji & Another v Samuel Henry & 7 others
    (2015) eKLR
  • Republic v National Environment Management Authority Ex Parte Sound Equipment Ltd
    (2011) eKLR
  • Secretary, County Public Service Board & Another v Hulbahi Gedi Abdille
    (2017) eKLR
  • The Clerk, Nakuru County Assembly and 2 others v Kenneth Odongo
    Nakuru Civil Appeal Nos. E136 & E137 of 2022, delivered 14th April 2023 (UR)
  • Law Society of Kenya v Office of the Attorney General & Another, Judicial Service Commission (Interested Party)
    2020 eKLR
  • Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board & others
    (2016) eKLR
  • SFA v AOA
    (2021) eKLR
  • Scope Telematics International Sales Limited v Stoic Company Limited & another
    [2017] eKLR
  • Giella Cassman Brown (Case)
  • John Mining Temoi & Another v Governor of Bungoma & 17 Others
    (2014) eKLR
  • John Rimui Waweru & 3 Others v Githunguri Constituency Ranching Co Limited & 5 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Marango & 4 others v County Public Service Board - Bungoma County & 3 others (Miscellaneous Application E006 of 2023) [2023] KEELRC 1630 (KLR)", Case Analysis (2023). Misc Application No E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1630/eng@2023-07-06

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