Marango & 4 others v County Public Service Board - Bungoma County & 3 others (Miscellaneous Application E006 of 2023) [2023] KEELRC 1630 (KLR)
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
#Key legal issues
#First-instance jurisdiction of the ELRC over applications for conservatory orders concerning county chief officer recruitment pending appeal before the Public Service Commission
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
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.
Sub judice
The application was sub judice given a similar conservatory orders application pending before the Public Service Commission
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.
Whether a substantive action is required to support interlocutory orders
Interlocutory conservatory orders cannot issue without a substantive suit or petition
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.
Whether the 3rd and 4th Respondents (Acting County Secretary and Governor) are properly enjoined
They are improperly joined; the suit against them is struck out
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.
Whether the application dated 20th April 2023 was merited
Not merited; the interim conservatory orders issued on 24th April 2023 were a nullity and set aside
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.
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.The Notices of Preliminary Objection dated 4th May 2023 and 19th May 2023 are upheld
- 2.The Notice of Motion application dated 20th April 2023 is dismissed for lack of jurisdiction
- 3.The interim conservatory orders of 24th April 2023 are set aside as a nullity
- 4.The suit against the 3rd and 4th Respondents is struck out
- 5.Each party to bear own costs in the application
- 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.