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ELRCStruck OutPetition dated 2nd August 2019 (number not stated in judgment)· [2023] KEELRC 2867 (KLR)

Barchok v County Government of Uasin Gishu Public Service Board & 4 others (Petition 8 of 2019) [2023] KEELRC 2867 (KLR)

Employment and Labour Relations Court
2 November 2023
MOM. Onyango
1,816 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The court struck out a county employee's constitutional petition because he first had to appeal through the Public Service Commission's statutory dispute resolution process.

What this practically means

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Executive summary

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The Petitioner, an employee of the 1st Respondent County Public Service Board of Uasin Gishu, petitioned the ELRC alleging that a letter dated 27th March 2019 redeploying him to Kaptendon Sub-County Hospital amounted to a demotion effected without valid reason and without a hearing, in breach of Articles 10, 27, 28, 41, 47, 73, 232 and 236 of the Constitution. He sought declarations that his rights had been contravened, that the deployment was null and void, and conservatory orders restraining the Respondents. The Petitioner asserted he rose from Public Health Technician in 1987 to Deputy Chief Public Health Officer and that an Acting Chief Officer, Health lacked power to demote him. The Respondents maintained the move was a horizontal transfer on the same salary and benefits, taken to improve service delivery and pursuant to their HR manuals, and that the Petitioner's appeals by letters dated 2nd May 2019 were pending when he filed the Petition. They raised a preliminary objection that the Petition offended the doctrine of exhaustion under section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act. Relying on the Court of Appeal's decision in Hulbhai Gedi Abdille, the court agreed that the prescribed appellate procedure must be exhausted before resorting to court. The preliminary objection was upheld and the Petition struck out with no orders as to costs; the merits were never determined.

Key legal issues

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Exhaustion of statutory dispute resolution mechanisms

Holding

The Petition was prematurely filed; the Petitioner ought first to have appealed to the Public Service Commission under section 77 of the County Governments Act as read with section 87(2) of the Public Service Commission Act.

Reasoning

The court adopted the Court of Appeal's decision in Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille, which held that where a specialized appellate mechanism is prescribed by statute, it must be invoked at first instance before resorting to the judicial process. The Petitioner's grievance against the County Public Service Board's decision fell squarely within that mechanism, so the court's jurisdiction was prematurely invoked.

p. 5

Legal principles established

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  • Where redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before resorting to the court

Court orders

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  1. 1.The Notice of Preliminary Objection dated 14th April 2023 is upheld
  2. 2.The Petition dated 2nd August 2019 is struck out
  3. 3.No orders as to costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court 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, "Barchok v County Government of Uasin Gishu Public Service Board & 4 others (Petition 8 of 2019) [2023] KEELRC 2867 (KLR)", Case Analysis (2023). Petition dated 2nd August 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2867/eng@2023-11-02

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