Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutConstitutional Petition dated September 8, 2022 (Malindi ELRC)· [2023] KEELRC 2364 (KLR)

Fondo v County Government of Kilifi H.E. the Governor, Kilifi County (Petition E002 of 2022) [2023] KEELRC 2364 (KLR)

Employment and Labour Relations Court
28 September 2023
ANAGNES KITIKU NZEI
3,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out Kilifi's former County Attorney's petition because she had to appeal to the Public Service Commission before going to court.

What this practically means

#

Executive summary

#
The Petitioner, formerly County Attorney of Kilifi County, challenged a public statement issued by the newly elected Governor on 30 August 2022 declaring her term expired and appointing the County Solicitor as Acting County Attorney. She sought declarations of violation of fair labour practices and fair administrative action, certiorari to quash the statement, injunctions and prohibition against refilling the office, mandamus on maternity leave, and extensive damages and contractual compensation. The Respondents filed a preliminary objection contending that the Court lacked jurisdiction, that the County Public Service Board was the proper party on employment contracts, and that the Petitioner should have appealed to the Public Service Commission under Article 234(2)(i) of the Constitution and Sections 57 and 77 of the County Governments Act. The court, observing that the petition was in substance an ordinary employment suit despite its constitutional styling, treated it as such and proceeded on the jurisdictional objection. Relying on Section 77(2) of the County Governments Act, Section 87(2) of the Public Service Commission Act, and Court of Appeal authority on exhaustion of statutory remedies, the court held that a county public officer aggrieved by removal must first appeal to the Public Service Commission. The preliminary objection was upheld, the Petition was struck out in its entirety, all interim and conservatory orders were vacated, and each party was ordered to bear its own costs. Judgment delivered at Mombasa on 28 September 2023 by Agnes Kitiku Nzei, J.

Key legal issues

#
01

Whether the Court had jurisdiction over the Petition

Holding

The Court lacks jurisdiction; the Petitioner ought to have appealed the Governor's decision to the Public Service Commission before filing suit.

Reasoning

Section 77(2) of the County Governments Act vests the Public Service Commission with appellate jurisdiction over any decision relating to employment in a county government, including removal from service. Section 87(2) of the Public Service Commission Act expressly bars filing legal proceedings in court on such matters unless the Commission's procedure is exhausted. The Petitioner, a county public officer contesting removal by the Governor, bypassed that avenue, so the suit was premature and the Court had no jurisdiction.

p. 8
02

Characterisation of the Petition

Holding

Though styled a constitutional petition, the pleading is in substance an ordinary employment suit founded on breach of contract and the Employment Act.

Reasoning

The reliefs sought — declarations, injunctions and damages for breach of an employment contract and terminal dues — are governed by the Employment Act, which provides adequate remedies. Following the Court of Appeal's guidance, where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging that legislation, absent any question of constitutional interpretation.

p. 5

Legal principles established

#
  • Where a specialised statutory dispute-resolution mechanism exists, it must be exhausted before resort to court; Section 87(2) of the Public Service Commission Act bars court proceedings on county public service matters before the Commission's process is exhausted
  • A county government employee aggrieved by termination, whether or not effected by the County Public Service Board, must as a matter of law appeal to the Public Service Commission under Section 77(2)

Court orders

#
  1. 1.The Respondents' preliminary objection is upheld to the extent that it challenges the Court's jurisdiction
  2. 2.The Petition is struck out in its entirety
  3. 3.Any interim and/or conservatory orders issued herein are vacated
  4. 4.Each party will bear its own costs of the Petition and the proceedings

Authorities

#

Legislation

  • Office of the County Attorney ActSection 6(1); Section 31
  • County Governments Act, 2012Sections 57, 59(1), 77(1) & (2)
  • Employment ActSection 45
  • Public Service Commission ActSection 87(2)
  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 27(1), 28, 41, 47, 162(2)(a), 165(3)(b), 222, 234(2)(i), 259

Cases cited (5)

  • Sumayya Athmani Hassan v Paul Masinde Simidi & Another
    [2019] eKLR
  • Secretary, Public Service Board & Another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [2992] eKLR (as printed)
  • Major [RTD] Abdirahman Idris v County Government of Mombasa & 2 Others
    [2023] eKLR
  • Malindi ELRC Petition No E001 of 2020 (Commission for Human Rights and Justice v County Government of Kilifi & 2 others)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2)(a) of the Constitution; objection based on Article 234(2)(i), Sections 57 and 77 of the County Governments Act, 2012 and Section 87(2) of the Public Service Commission Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fondo v County Government of Kilifi H.E. the Governor, Kilifi County (Petition E002 of 2022) [2023] KEELRC 2364 (KLR)", Case Analysis (2023). Constitutional Petition dated September 8, 2022 (Malindi ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2364/eng@2023-09-28

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