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ELRCStruck OutPetition dated 2nd August 2019 (number not stated in judgment)· [2023] KEELRC 2869 (KLR)

Melly v County Government of Uasin Gishu Public Service Board & 4 others (Petition 7 of 2019) [2023] KEELRC 2869 (KLR)

Employment and Labour Relations Court
2 November 2023
MOM. Onyango
1,801 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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Kenya's Employment Court struck out a county worker's demotion petition because he skipped the mandatory internal appeal under the County Governments Act first.

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 Employment and Labour Relations Court at Eldoret alleging that his posting on 27th March 2019 from Uasin Gishu District Hospital to Ziwa Sub County Hospital as a Nursing Officer was in substance a demotion effected without a hearing, contrary to Articles 27, 28, 41, 47, 73(2), 232 and 236 of the Constitution. He sought declarations that his terms of service had been varied without consent, that the deployment was null and void, and a conservatory order restraining the Respondents from filling his position. The Respondents maintained that the posting was a horizontal transfer within their managerial prerogative, done in line with the Human Resource Manual, with no change to salary or benefits, and that disciplinary process was unnecessary. They filed a preliminary objection contending that the Petition offended the exhaustion doctrine under section 77 of the County Governments Act and sections 85 and 87(2) of the Public Service Commission Act, and was frivolous and defective. Both sides filed written submissions as directed. Relying principally on the Court of Appeal's decision in Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille, the court held that the statutory appellate mechanism had to be exhausted before court intervention, and that the Petitioner's appeal letters did not substitute for that process since the Petition was filed prematurely. The preliminary objection was upheld, the Petition was struck out, and the court made no orders as to costs. The merits of the alleged demotion were never determined.

Key legal issues

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01

Exhaustion of statutory remedies as a bar to a constitutional petition

Holding

The Petition was premature because the Petitioner did not exhaust the appellate mechanism under section 77 of the County Governments Act read with section 87(2) of the Public Service Commission Act before filing suit; the preliminary objection was upheld and the Petition struck out.

Reasoning

The court adopted the Court of Appeal decision in Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille, which held that where a specialized dispute resolution mechanism is provided by statute, it should be invoked at first instance rather than the judicial process. The Respondents' preliminary objection on exhaustion and jurisdiction therefore succeeded, disposing of the entire Petition without a determination on the merits of the alleged demotion.

p. 4

Legal principles established

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

Court orders

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  1. 1.The 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 and section 12 of the Employment and Labour Relations Court Act (as invoked by the Petitioner)

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, "Melly v County Government of Uasin Gishu Public Service Board & 4 others (Petition 7 of 2019) [2023] KEELRC 2869 (KLR)", Case Analysis (2023). Petition dated 2nd August 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2869/eng@2023-11-02

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