Odongo v Nakuru County Government Public Service Board & 30 others (Employment and Labour Relations Petition E001 of 2023) [2023] KEELRC 2329 (KLR)
The bottom line
#Nakuru's Employment Court paused a challenge to 23 county Chief Officer appointments, awaiting the Court of Appeal's ruling on its own jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Statutory exhaustion under section 77 County Government Act and sections 85–87 PSC Act
The PSC appeal mechanism did not apply because the impugned appointments were made by the Governor with County Assembly approval, not by the CPSB
The Court examined sections 77(2) of the County Government Act and sections 85, 86 and 87 of the PSC Act, which govern appeals from decisions of the County Public Service Board. It found the impugned decision (appointment of Chief Officers) was not made by the CPSB, hence not appellable to the PSC.
Sub judice regarding the Court's own jurisdiction
The question of the Court's jurisdiction in this matter was sub judice before the Court of Appeal in Civil Appeal No. E136 of 2022, so the Court downed its tools
The respondents had appealed against a ruling of this Court dismissing a preliminary objection on jurisdiction in the related Petition E017 of 2022. Since that appeal raising the same jurisdictional issue was pending, the Court declined to rule on its jurisdiction and refrained from determining the merits.
Res judicata / sub judice in relation to ELRC Petition No. E017 of 2022
Not conclusively determined; the Court suspended determination of all issues pending the Court of Appeal decision
Although the respondents argued the petition was res judicata of Petition E017 of 2022 and the petitioner contended the present petition concerned distinct later actions (the December 2022 nomination, approval and appointment), the Court did not resolve this issue, instead deferring everything to the jurisdiction question pending before the Court of Appeal.
Legal principles established
#- Where the jurisdiction of the court is itself a matter pending before a superior court, the court should not proceed to determine that jurisdictional issue
- An impugned decision not made by the County Public Service Board is not appealable to the Public Service Commission under the PSC Act
Court orders
#- 1.The Court declined to determine the merits of the Petition and the application pending the Court of Appeal's decision on its jurisdiction in Civil Appeal No. E136 of 2022
- 2.Costs in the cause
- Jurisdiction invoked
- Articles 162(2) and 165 of the Constitution; Section 12 of the Employment and Labour Relations Court Act, 2011 (jurisdiction contested by respondents)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo v Nakuru County Government Public Service Board & 30 others (Employment and Labour Relations Petition E001 of 2023) [2023] KEELRC 2329 (KLR)", Case Analysis (2023). Nakuru ELRC Petition No. E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2329/eng@2023-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.