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ELRCStruck OutPetition dated 22nd October, 2022· [2023] KEELRC 2547 (KLR)

Otieno & another v County Government of Homa-Bay & 5 others (Petition E051 of 2022) [2023] KEELRC 2547 (KLR)

Employment and Labour Relations Court
19 October 2023
CBChristine N. Baari
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a petition challenging Homa Bay County staff transfers because the petitioners skipped the Public Service Commission appeal process first.

What this practically means

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Executive summary

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The Petitioners, by a petition dated 22nd October 2022, sought a declaration that a circular of 21st December 2022 transferring administrative staff in the County Government of Homabay contravened Articles 10, 27(8), 56 and 232 of the Constitution; an order of prohibition against further promotions, transfers or approvals contrary to the County Government Act and the County Governments (Amendment) Act 2020; an order of mandamus compelling the County Governor to act in compliance with those provisions; and costs as a public interest case. They alleged that two individuals were employed outside the establishment, that the County Secretary had usurped powers beyond those conferred by law, and that gender equity and affirmative action principles had been ignored. The Respondents raised a preliminary jurisdictional objection, contending that the petition concerned county public service matters within the appellate jurisdiction of the Public Service Commission under Article 234(2)(i) of the Constitution and Sections 87 and 85 of the Public Service Commission Act read with Section 77 of the County Government Act, and that the petitioners were bound to exhaust those remedies first. They further maintained that transfers are a management prerogative. The court framed two issues: its jurisdiction, and whether the reliefs were deserved. Applying Owners of Motor Vessel 'Lillian S' and Section 87(2) of the Public Service Commission Act, and following Lukale Moses Sande and Susan Wanjiru Mwai, the court held that the decision impugned fell within the PSC's mandate in the first instance and that failure to exhaust the alternative mechanism ousted the court's jurisdiction. The petition was struck out with no orders on costs.

Key legal issues

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Whether the court had jurisdiction over a petition challenging transfers and appointments in the county public service

Holding

The court lacked jurisdiction because the petitioners had not exhausted the appeal and dispute resolution mechanisms before the Public Service Commission under Article 234(2)(i) of the Constitution and Sections 87 and 85 of the Public Service Commission Act read with Section 77 of the County Government Act.

Reasoning

Relying on Owners of Motor Vessel 'Lillian S', the court held jurisdiction must be determined at the outset. The impugned circular arose from the county government public service, a matter squarely within the PSC's mandate in the first instance. Section 87(2) of the Public Service Commission Act expressly bars court proceedings unless the statutory procedure is exhausted. The court applied Lukale Moses Sande and Susan Wanjiru Mwai, where courts declined jurisdiction for failure to exhaust internal mechanisms, and struck out the petition.

Legal principles established

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  • Where a statute establishes an alternative dispute resolution mechanism, a party must exhaust it before invoking the court's jurisdiction; failure to do so ousts the court's jurisdiction.
  • Section 87(2) of the Public Service Commission Act bars legal proceedings in court on matters within the Commission's appellate jurisdiction over county government service unless the statutory procedure has been exhausted.

Court orders

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  1. 1.The petition is struck out
  2. 2.No orders on costs
Jurisdiction invoked
Constitution of Kenya, 2010 (petition under Articles 10, 23, 27(8), 28, 47, 56, 74, 201 and 232); jurisdiction contested under Article 234(2)(i) and Sections 87 and 85 of the Public Service Commission Act read with Section 77 of the County Government Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Otieno & another v County Government of Homa-Bay & 5 others (Petition E051 of 2022) [2023] KEELRC 2547 (KLR)", Case Analysis (2023). Petition dated 22nd October, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2547/eng@2023-10-19

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