Loyatum & 5 others v West Pokot County Government & 2 others (Cause E007 of 2022) [2023] KEELRC 1831 (KLR)
The bottom line
#Kenya's Employment Court struck out a county workers' salary claim because they skipped the required appeal to the Public Service Commission first.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim was filed prematurely for failure to exhaust internal dispute resolution mechanisms
The suit was filed prematurely; the Claimants were required to appeal to the Public Service Commission under section 77 of the County Governments Act and sections 85 and 87(2) of the Public Service Commission Act before approaching the court.
The issues raised in the claim (salary arrears, surcharge and reversion of employment) fall under section 77 of the County Governments Act and are subject of appeal to the PSC. The 3rd Respondent, accused of failing to set up a dispute resolution mechanism, is not the final authority at that level; the pleadings do not show the Claimants approached the PSC and it failed to resolve the issues. No exceptional circumstances were demonstrated to justify bypassing the appeal process.
Whether the court has jurisdiction to hear the claim
The court lacks jurisdiction at first instance over the claim because the statutory appeal process to the PSC was not exhausted, section 87(2) of the Public Service Commission Act being mandatory and ousting the court's jurisdiction in the first instance.
Relying on Court of Appeal authority, the court found that section 87(2) of the Public Service Commission Act is couched in mandatory terms and expressly ousts the jurisdiction of the courts in the first instance. A party must first exhaust Part XV of the Public Service Commission Act before approaching the court. Exceptions to exhaustion (as in Krystalline Salt and Fleur Investments) apply only in exceptional circumstances, none of which were established here.
Legal principles established
#- Claims concerning county government public service employment matters such as remuneration and terms of service must first be pursued by appeal to the Public Service Commission under section 77 of the County Governments Act and sections 85 and 87(2) of the Public Service Commission Act before approaching the court.
- Exceptions to the exhaustion doctrine exist but apply only in exceptional circumstances, which the Claimants failed to demonstrate.
Court orders
#- 1.Preliminary objection succeeds and the suit is struck out for failure to exhaust the constitutional and statutory dispute resolution machinery before approaching the court
- 2.The decision shall not bar the Claimants from filing a fresh suit after exhausting the statutory machinery, provided they come within the statutory limitation period
- 3.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 234(2)(i) of the Constitution read with section 77 of the County Governments Act and sections 85 and 87(2) of the Public Service Commission Act (exhaustion doctrine)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loyatum & 5 others v West Pokot County Government & 2 others (Cause E007 of 2022) [2023] KEELRC 1831 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1831/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.