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ELRCStruck OutNot stated in judgment· [2023] KEELRC 1832 (KLR)

Oyieyo & 5 others v County Government of Homabay & 3 others (Petition E006 of 2023) [2023] KEELRC 1832 (KLR)

Employment and Labour Relations Court
31 July 2023
CBC. N. Baari
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out Homa Bay teachers' petition because they skipped the Public Service Commission dispute process required before going to court.

What this practically means

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Executive summary

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The Respondents filed a Notice of Preliminary Objection seeking striking out of the Petitioners' petition for want of jurisdiction, contending that under Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and the Public Service Commission Act, disputes concerning county public officers' remuneration and terms and conditions of service lie with the Public Service Commission, and the Petitioners had not exhausted those mechanisms. The Petitioners opposed the objection, arguing that as teachers registered by the Teachers Service Commission under Article 237, they fell outside Article 234(2)(i) by virtue of Article 234(3)(c), and relying on the Supreme Court's holding in Samuel Macharia Kamau v KCB that jurisdiction is granted by law. The Court applied Owners of Motor Vessel 'Lillian S' on the centrality of jurisdiction, and the exhaustion jurisprudence in Lukale Moses Sande, Geoffrey Muthinji, Republic v NEMA Ex Parte Sound Equipment and Susan Wanjiru Mwai. It held that pre-primary education is a devolved county function under Part II of the Fourth Schedule and that the Petitioners, who sued the County as their employer, are county government employees, so the Article 234(3)(c) exemption did not hold. Since the Petitioners had not attempted the statutory dispute-resolution mechanisms, the suit offended the exhaustion doctrine. The Court struck out the petition, dismissed the contempt motion dated May 8, 2023 as moot, and made no orders on costs.

Key legal issues

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01

Whether the ELRC's jurisdiction is ousted where the dispute concerns county public officers' remuneration and terms of service that lie before the Public Service Commission

Holding

The Court lacks jurisdiction because the Petitioners, being employees in the service of the County Government of Homa Bay, did not exhaust the dispute mechanisms under the Constitution, the County Government Act and the Public Service Commission Act before filing suit

Reasoning

Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, couched in mandatory terms, require appeals on remuneration and terms and conditions of service to go to the Public Service Commission. The Petitioners' claim that Article 234(3)(c) exempted them as TSC-registered teachers failed because pre-primary education is a county function and they sued the County as their employer, not the TSC. Having not attempted the statutory mechanisms, the suit offends the exhaustion doctrine and the Court downed its tools.

p. 3
02

Whether the Petitioners' registration as teachers under Article 237 exempts them from Article 234(2)(i)

Holding

The exemption does not hold because the Petitioners are employed in the service of the County Government and sued the County as their employer

Reasoning

Part II of the Fourth Schedule places pre-primary education under county governments. The Petitioners anchored their claim on the Respondent being their employer rather than the Teachers Service Commission, so the Article 234(3)(c) exclusion for TSC staff was inapplicable.

p. 3

Legal principles established

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  • Where a statutory dispute-resolution mechanism exists, it must be exhausted before a party invokes the jurisdiction of the Court; courts are fora of last resort

Court orders

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  1. 1.The petition is struck out
  2. 2.The contempt motion dated May 8, 2023 is dismissed
  3. 3.No orders on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 234(2)(i); Article 234(3)(c); Article 237; Part II of the Fourth Schedule
  • County Government ActSection 77
  • Public Service Commission Act, 2017Section 87(2); Section 86

Cases cited (7)

  • Sofia Mbone Amadi & 42 others v County Government of Vihiga
    [2021] eKLR
  • Samuel Macharia Kamau v. KCB
  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    [1989] eKLR
  • Lukale Moses Sande v the County Government of Kakamega & 3 Others
    Cause No. 23 of 2020
  • Geoffrey Muthinji & Another V Samuel Henry & 7 Others
    (2015) eKLR
  • Republic v National Environment Management Authority Ex Parte Sound Equipment Ltd
    [2011] eKLR
  • Susan Wanjiru Mwai & 65 Others v County Government of Kirinyaga & 2 Others
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied); objection based on Article 234(2)(i), Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, 2017

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, "Oyieyo & 5 others v County Government of Homabay & 3 others (Petition E006 of 2023) [2023] KEELRC 1832 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1832/eng@2023-07-31

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