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ELRCOtherPetition No. E010 of 2023· [2023] KEELRC 3252 (KLR)

Omao v County Government of Kisii & 3 others (Petition E010 of 2023) [2023] KEELRC 3252 (KLR)

Employment and Labour Relations Court
7 December 2023
CBChristine N. Baari
1,923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a petition against a county government because the petitioner skipped the mandatory Public Service Commission appeal process first.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kisumu (Baari J) determines the respondents' preliminary objection dated 29 March 2023, supplemented on 26 April 2023, seeking strike-out of the petitioner's petition and notice of motion dated 27 March 2023. The respondents argued that the court lacked jurisdiction over the prayer seeking nullification of the appointment of the chairperson and a board member of the 3rd respondent (section 58(5) County Government Act), that the petition failed the Anarita Karimi precision threshold, that internal dispute resolution mechanisms had not been exhausted (section 77 County Governments Act; section 87(2) Public Service Commission Act), and that the petitioner lacked locus standi. The petitioner, relying on Articles 22, 23 and 165(3)(d) of the Constitution and on Trusted Society of Human Rights Alliance and Abdikadir Suleiman, argued the objection was argumentative and fact-laden, that he was challenging appointment rather than removal, and that he sued in the public interest. The court framed a single issue: whether the objection met the Mukhisa Biscuits threshold of a pure point of law. It held that the grounds on appointment, confirmation and payroll admission required ascertainment of facts and could not sustain a preliminary objection. However, on exhaustion, it found the petitioner's claims on confirmation, payroll admission and recruitment fell squarely within the Public Service Commission's appellate jurisdiction and were not justiciable in the first instance before the court. Finding no jurisdiction, the court downed its tools, allowed the preliminary objection, struck out the application and petition, and awarded costs to the respondents.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

The objection on lack of jurisdiction and exhaustion raised pure points of law, but the grounds relating to appointment, confirmation and payroll admission required ascertainment of facts

Reasoning

Applying Mukhisa Biscuits, the court held that issues surrounding appointment, confirmation and admission into the payroll of county employees are questions of fact requiring examination of evidence and thus cannot sustain a preliminary objection on that basis. However, the jurisdictional and exhaustion grounds were pure points of law and succeeded.

p. 4
02

Whether the court had jurisdiction given the exhaustion doctrine

Holding

The court lacked jurisdiction; the petitioner's claims fell within the Public Service Commission's appellate jurisdiction under section 77 County Governments Act and section 87(2) Public Service Commission Act

Reasoning

The petitioner sought declaratory orders on confirmation of county employees, payroll admission and recruitment, all matters expressly within the Commission's appellate jurisdiction under section 77(2) of the County Governments Act. Section 87(2) of the Public Service Commission Act bars court proceedings before exhaustion, and the requirement is mandatory. The court therefore downed its tools.

p. 5

Legal principles established

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  • A preliminary objection must be founded on pure points of law and cannot be raised if facts have to be ascertained
  • The requirement to appeal to the Public Service Commission on county public service matters is mandatory and a person must exhaust that procedure before filing suit
  • Where a court finds it lacks jurisdiction it must down its tools

Court orders

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  1. 1.The respondents' preliminary objection succeeds
  2. 2.The petitioner's application dated March 27, 2023 and the petition are struck out with costs
Jurisdiction invoked
Articles 22, 23 and 165(3)(d) of the Constitution invoked by the petitioner; respondents invoked section 77 County Governments Act, section 87(2) Public Service Commission 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, "Omao v County Government of Kisii & 3 others (Petition E010 of 2023) [2023] KEELRC 3252 (KLR)", Case Analysis (2023). Petition No. E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3252/eng@2023-12-07

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