Republic of Kenya v Secretary, County Public Service Board Bungoma & another; Ongoro (Exparte Applicant) (Judicial Review E004 of 2022) [2023] KEELRC 2203 (KLR)
The bottom line
#A Kenyan court ordered Bungoma County to pay a former water officer Kshs. 1.87 million in unpaid allowances, but declined to order his promotion.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of the PSC appeal mechanism
The court was properly seized of the matter because the ex parte applicant had exhausted the appeal mechanism before the Public Service Commission before filing suit
Although jurisdiction was not pleaded, the court must satisfy itself of jurisdiction sua sponte. The respondent argued under section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act that the applicant should first have appealed to the PSC. However, exhibit MOO-12 showed an appeal to the PSC filed on 23rd April 2019, which the Commission determined by letter dated 7th February 2020 (MOO-13). Leave having been granted, the judicial review application was competent.
Liability of the 1st respondent
The 1st respondent ought not to have been sued as he is not a legal entity, but he was not struck out because the issue was not pleaded; section 133 immunity was nonetheless upheld
The respondent argued in submissions, without pleading, that the 1st respondent could not be sued personally under section 133 of the County Governments Act. The court agreed the 1st respondent ought not to have been sued since the Board is the legal entity, but declined to strike him out for lack of pleading and notice, while upholding the statutory immunity for officers acting in good faith.
Limitation under section 90 of the Employment Act
The claim for unpaid meals and transport allowance was not time barred because the injury was continuing while the applicant remained in service and was still demanding payment
The respondent argued the claim, earned between 2019 and 2020, had to be filed within 12 months under section 90. The court noted the last demand letter was dated 21st April 2022 and that the applicant filed the claim while still in service; the continuing injury had not ceased, so limitation had not started running. The claim was also unrebutted, and the court found the applicant proved entitlement to Kshs. 1,500,200 as sought in the reliefs.
Discrimination in promotion
The discrimination claim was not proved and was disallowed
The applicant alleged he was denied promotion because he was not Luhya or Bukusu despite performing higher duties. The court found no documentary evidence of tribal discrimination and the alleged promotion recommendation was not produced. The PSC had already found the recommendation was not submitted to the Board and that the position was competitively filled. The court had no basis to fault the PSC decision.
Acting appointment and acting allowance
The acting appointment as Deputy Director was admitted and uncontested; the applicant was entitled to acting allowance of Kshs. 374,018 for the 18 months acted
The respondent's replying affidavit admitted the applicant was appointed in acting capacity as Deputy County Water Director and only disputed entitlement to allowance, saying he acted in the same department with similar responsibilities. The court held the acting position was known to the employer, that he acted 18 months, and that the HR manual (PSC Service Manual 2016) formed part of the contract, entitling him to the allowance as a right; failure to pay was unfair labour practice and unfair administrative action.
Legal principles established
#- Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed (doctrine of exhaustion), but once the alternative mechanism has been exhausted the judicial review application is competent
- An officer of a county government acting in good faith in the execution of a duty is not personally liable to civil liability, so the 1st respondent ought not to have been sued personally
- Where an employee is still in service and continues to demand payment, a claim for unpaid dues is a continuing injury under the proviso to section 90 of the Employment Act and limitation has not begun to run
- An acting allowance provided for under the applicable human resource manual forms part of the terms of employment and is payable as a right, not a favour; failure to pay is unfair labour practice and unfair administrative action
Court orders
#- 1.An order of Mandamus directed at the 2nd Respondent to pay the ex parte applicant meals allowance and transport of Kshs. 1,500,000/- earned for supervision of Bungoma County Government Water projects between 2019-2020
- 2.An order of Mandamus directed at the 2nd Respondent to pay the ex parte applicant acting allowance of Kshs. 374,018
- 3.The ex parte applicant is awarded costs of the suit with interest at court rate from date of judgment
- 4.Right of appeal in 30 days; stay granted of 30 days
- Jurisdiction invoked
- Articles 41, 48 and 159 of the Constitution; Order 53 of the Civil Procedure Rules (judicial review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic of Kenya v Secretary, County Public Service Board Bungoma & another; Ongoro (Exparte Applicant) (Judicial Review E004 of 2022) [2023] KEELRC 2203 (KLR)", Case Analysis (2023). Judicial Review Application dated 24th November 2022 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2203/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.