Omoit v County Secretary, Busia County Government & 3 others; Public Service Commission (Interested Party) (Constitutional Petition E010 of 2023) [2023] KEELRC 2233 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petitioner was required to exhaust the appeal mechanism before the Public Service Commission before filing the Petition
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
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 The 'may' in Section 77(1) has been replaced by the mandatory procedure under Sections 85, 86 and 87(2) of the PSC Act, so the court's jurisdiction could only be invoked after compliance with that procedure.
Whether the PSC can grant the reliefs sought (including reinstatement-like orders)
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
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.
Whether the Petitioner had a prima facie case for conservatory orders
No; the documents did not support that she was seconded, only appointed as County Chief Officer, and no approved leave of absence was shown
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 15th June 2023 by the 1st, 2nd, 3rd and 4th Respondents is upheld
- 2.The Notice of Motion application and Petition dated 6th June 2023 are dismissed for lack of first instance jurisdiction by the court
- 3.No order as to costs
- 4.Right of appeal in 30 days
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Leleruk & 41 others v Isiolo County Government & 2 others (Employment and Labour Relations Petition E010 of 2023) [2025] KEELRC 98 (KLR)[2025] KEELRC 98 (KLR)24 Jan 2025distinguished
Cite this brief
#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.