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ELRCStruck OutPetition dated 2nd August 2019 (Eldoret ELRC)· [2023] KEELRC 2874 (KLR)

Cheruiyot v County Government of Uasin Gishu Public Service Board & 4 others (Petition 10 of 2019) [2023] KEELRC 2874 (KLR)

Employment and Labour Relations Court
2 November 2023
MOM. Onyango
1,780 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 petition because he skipped the statutory appeal process to the Public Service Commission before going to court.

What this practically means

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Executive summary

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The Petitioner, a County Health Records and Information Officer deployed to Uasin Gishu in 2015, challenged a letter dated 27th March 2019 transferring him to Turbo Sub County Hospital as a health records officer, alleging it amounted to a demotion without valid reason and breached Articles 10, 27(1), 28, 41, 47, 73(2), 232 and 236 of the Constitution. He sought declarations of violation, conservatory orders restraining the Respondents from filling his position, and ancillary relief. The Respondents maintained the move was a horizontal transfer made in exercise of the employer's prerogative under the Human Resource Manual, carrying the same salary and benefits, and requiring no disciplinary process. They also filed a preliminary objection contending the Petition was premature, frivolous and defective for failure to exhaust the dispute resolution mechanism under section 77 of the County Governments Act read with section 87(2) of the Public Service Commission Act, citing Hulbhai Gedi Abdille. The Petitioner countered that his letters of appeal dated 2nd May 2019 went unanswered, justifying recourse to the court. Upholding the preliminary objection, the court held that the statutory appellate procedure must be exhausted before judicial intervention and struck out the Petition with no orders as to costs. The substantive constitutional claims were therefore never determined.

Key legal issues

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Exhaustion of statutory dispute resolution mechanisms

Holding

The Petition was premature and fatally defective for failure to exhaust the appellate procedure under section 77 of the County Governments Act read with section 87(2) of the Public Service Commission Act; the preliminary objection was upheld.

Reasoning

The court adopted the Court of Appeal's decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille, holding that where a specialized dispute resolution mechanism is prescribed by statute, it must be invoked before resort to the judicial process. The Petitioner's appeals against the transfer by letters dated 2nd May 2019 were deemed insufficient to excuse him from pursuing the prescribed appellate procedure before the Public Service Commission.

p. 4

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 and exhausted before court intervention

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 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, "Cheruiyot v County Government of Uasin Gishu Public Service Board & 4 others (Petition 10 of 2019) [2023] KEELRC 2874 (KLR)", Case Analysis (2023). Petition dated 2nd August 2019 (Eldoret ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2874/eng@2023-11-02

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