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ELRCDismissedPetition dated 6th June 2023 (Bungoma ELRC)· [2023] KEELRC 2233 (KLR)

Omoit v County Secretary, Busia County Government & 3 others; Public Service Commission (Interested Party) (Constitutional Petition E010 of 2023) [2023] KEELRC 2233 (KLR)

Employment and Labour Relations Court
28 September 2023
3,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a county employee's petition because she first had to appeal her employment grievance to the Public Service Commission, not the court.

What this practically means

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Executive summary

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The Petitioner, formerly Director of Budget and Economic Planning with the 3rd Respondent, filed a Notice of Motion and Petition dated 6th June 2023 seeking conservatory orders staying two advertisements and recruitment for her former position, and orders reinstating her to the position, office access and her salary, allowances and benefits. She claimed she had reverted from a contractual appointment as County Chief Officer to her permanent and pensionable position but was refused deployment, her salary was not processed, and her position was advertised. The 1st to 4th Respondents filed a Notice of Preliminary Objection dated 15th June 2023 arguing the petition was premature under Section 77 of the County Governments Act and that the court lacked jurisdiction because the Public Service Commission (PSC) is the first-tier forum. The court canvassed the objection by written submissions. Relying on Owners of Motor Vessel 'Lillian S' v Caltex Oil, it addressed jurisdiction first. It held the dispute is a pure employment grievance concerning deployment, recruitment, remuneration and terms of service, all matters appealable to the PSC under Section 77(2) of the County Governments Act. The discretionary word 'may' in Section 77(1) had been replaced by the mandatory procedure under Sections 85, 86 and 87(2) of the Public Service Commission Act, barring court proceedings before exhaustion. The court disagreed with Abdikadir Suleiman, holding that any county public service board decision on employment is amenable to the PSC's appellate jurisdiction covering both merits and procedure. On the documents, no prima facie case supported conservatory orders. The objection was upheld, the application and petition dismissed for lack of first-instance jurisdiction, with no order as to costs and a 30-day right of appeal.

Key legal issues

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01

Whether the Petitioner was required to exhaust the appeal mechanism before the Public Service Commission before filing the Petition

Holding

Yes; the issues raised (deployment, advertisement of position, remuneration and terms of service) are appealable to the PSC as the first-instance forum, and Section 87(2) PSC Act bars court proceedings before exhaustion

Reasoning

The court held the dispute is a pure employment grievance concerning terms of service, recruitment and remuneration, all matters reserved to the County Public Service Board and appealable to the PSC under Section 77(2) County Governments Act. The 'may' in Section 77(1) has been replaced by the mandatory procedure under Sections 85, 86 and 87(2) of the PSC Act, so the court's jurisdiction could only be invoked after compliance with that procedure.

p. 8
02

Whether the PSC can grant the reliefs sought (including reinstatement-like orders)

Holding

The court disagreed with the Abdikadir Suleiman authority and held the PSC, in exercising appellate jurisdiction, can make decisions including recommending re-assignment or reinstating salary

Reasoning

Relying on Secretary, County Public Service Board v Hulbhai Gedi Abdille, the court held Section 77 places no fetter on the PSC's jurisdiction, which covers both the merits of a decision and the procedure. The County Public Service Board has power to assign positions and reinstate salaries, so the PSC on appeal can recommend re-assignment or reinstatement of salary or uphold the Board's decision. The court expressly departed from Ongaya J's contrary view.

p. 7
03

Whether the Petitioner had a prima facie case for conservatory orders

Holding

No; the documents did not support that she was seconded, only appointed as County Chief Officer, and no approved leave of absence was shown

Reasoning

On perusal of the appointment letter by the Governor dated 29th March 2018 (extended to 31st December 2022) and the request for leave of absence, the court found no evidence of secondment or approval of leave of absence; later letters of secondment were not the same as leave of absence. Consequently, no prima facie case supported the conservatory orders sought.

p. 5

Legal principles established

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  • Any decision of a county public service board on employment matters, whether deemed illegal or otherwise, is amenable to the appeal jurisdiction of the Public Service Commission, and court proceedings on such matters are barred unless the PSC procedure is exhausted
  • The discretionary language of Section 77(1) County Governments Act ('may') has been superseded by the mandatory appeal procedure under Sections 85, 86 and 87(2) of the Public Service Commission Act

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15th June 2023 by the 1st, 2nd, 3rd and 4th Respondents is upheld
  2. 2.The Notice of Motion application and Petition dated 6th June 2023 are dismissed for lack of first instance jurisdiction by the court
  3. 3.No order as to costs
  4. 4.Right of appeal in 30 days

Authorities

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Legislation

  • County Governments ActSection 77
  • County Governments ActSection 59(1)(b)
  • Public Service Commission ActSection 3
  • Public Service Commission Act, No. 10 of 2017Section 5
  • Public Service Commission Act, No. 10 of 2017Sections 85 and 86
  • Public Service Commission Act, No. 10 of 2017Section 87(2)
  • Constitution of KenyaArticle 234(2)(i)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 232

Cases cited (13)

  • Owners of Motor Vessel "Lillian S" - v- Caltex Oil Kenya Limited
    (1989) eKLR
  • Sabastian Sunya & 5 others v Busia County Public Service Board & Another
    Bungoma ELRC Petition No. E005 of 2022
  • Abdikadir Suleiman v County Government of Isiolo & Another
    (2015) eKLR
  • United States International University (USIU) V Attorney General
    (2012) eKLR
  • Prof. Daniel N. Mugendi v Kenyatta University and 3 others
    Civil Appeal No. 6 of 2012
  • Geoffrey Makana Asanyo v Nakuru Water And Sanitation Services Company
  • Judicial Service Commission v Gladys Boss Shollei & Another
    (2014) eKLR
  • Geoffrey Mworia v Water Resources Management Authority and 2 others
    (2015) eKLR
  • Karisa Chengo and 2 others v Republic
    (2015) eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Sammy Kalundu v Ag. Clerk of the Nairobi City County Assembly
    (2022) eKLR
  • James Akelerio alias Muguu & Another v Moses Kasaine Lenolkilal & 3 others
    (2014) eKLR
  • Republic v National Environment Management Authority
Jurisdiction invoked
Article 162(2) Constitution (ELRC jurisdiction) as limited by Section 77 County Governments Act, 2012 and Sections 85, 86 and 87(2) Public Service Commission Act, No. 10 of 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omoit v County Secretary, Busia County Government & 3 others; Public Service Commission (Interested Party) (Constitutional Petition E010 of 2023) [2023] KEELRC 2233 (KLR)", Case Analysis (2023). Petition dated 6th June 2023 (Bungoma ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2233/eng@2023-09-28

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