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ELRCOtherCause No E072 of 2023· [2023] KEELRC 3253 (KLR)

Ouma v Migori County Assembly Service Board & another (Cause E072 of 2023) [2023] KEELRC 3253 (KLR)

Employment and Labour Relations Court
7 December 2023
CBC. N. Baari
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kisumu court struck out a dismissed Kisii County Assembly worker's case because he had to appeal to the Public Service Commission first, not go straight to court.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Kisumu determined a preliminary objection dated September 26, 2023, raised by the Respondents against a petition challenging the Claimant's dismissal by a letter dated 4th July, 2022, from the County Assembly Service Board of Kisii. Two grounds were raised: lack of jurisdiction under Article 234(2)(i) of the Constitution, section 77 of the County Government Act and sections 86 and 87(2) of the PSC Act, and res judicata by reference to a ruling in Petition No. E032 of 2022. On res judicata, the Court applied Mukisa Biscuits and Tee Gee Electrics, holding the previous petition had not been determined on the merits and related to a different letter; it also agreed res judicata should be raised by notice of motion. On jurisdiction, the Court held that County Assembly Service employees fall within the definition of county public service since only the Governor, Deputy Governor, executive committee members and Members of County Assembly are excluded, and followed Secretary County Public Service Board v Hulbhai Gedi Abdille and Abdikadir Suleiman in upholding the PSC's appellate mandate. The Claimant therefore prematurely invoked the Court's jurisdiction without exhausting the statutory alternative forum. The preliminary objection succeeded, and the application and memorandum of claim dated September 22, 2023 were struck out with costs to the Respondents.

Key legal issues

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01

Whether res judicata can be raised by preliminary objection

Holding

The objection on res judicata failed because the prior petition had not been determined on the merits and the orders granted related to a different letter

Reasoning

The Court held the previous ruling in Petition No. E032 of 2022 had not finally determined the petition, and res judicata only applies where the earlier suit was heard and determined on the merits. It also agreed that res judicata should be raised by notice of motion so the previous pleadings can be produced and examined.

p. 3
02

Whether Article 234(2)(i), section 77 of the County Government Act and sections 86 and 87(2) of the PSC Act apply to County Assembly Service

Holding

They do apply; County Assembly Service employees are part of the County Public Service

Reasoning

The Court adopted the County Government Act definition of county public service, noting only the Governor, Deputy Governor, County Executive Committee members and Members of County Assembly are excluded. Persons serving in the County Assembly Service are not excluded, hence fall within the PSC's appellate mandate, and the exhaustion doctrine required the Claimant to go to the PSC first.

p. 4

Legal principles established

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  • Employees of County Assemblies form part of the County Public Service and are subject to the appellate jurisdiction of the Public Service Commission under Article 234(2)(i), section 77 of the County Government Act and sections 86 and 87(2) of the PSC Act
  • Where an alternative statutory dispute-resolution forum exists, a party must exhaust it before invoking the Court's jurisdiction

Court orders

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  1. 1.The Respondents' preliminary objection dated September 26, 2023 succeeds
  2. 2.The application dated September 22, 2023 and the memorandum of claim of even date are struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 234(2)(i); Article 176
  • County Government ActSection 77
  • Public Service Commission Act, 2017Sections 86 and 87(2)
  • Civil Procedure ActSection 7

Cases cited (9)

  • Likale Moses Sande v County Government of Kakamega & 3 others
    [2021] eKLR
  • John Kamau Kimani v. County Government of Transzoia & another
    (2014) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • Nicholas Njeru V the Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited
    [2005] KLR 97
  • John Mwivithi Mutie v Speaker Kiambu County Assembly & 2 others; County Secretary Kiambu County Government & another (Interested Parties)
    [2022] eKLR
  • Secretary County Public Service Board and another v Hulbhai Gedi Abdille
    (2017) eKLR
  • Abdikadir Suleiman v County Government of Isiolo & another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied); objection based on Article 234(2)(i), section 77 County Government Act, sections 86 and 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, "Ouma v Migori County Assembly Service Board & another (Cause E072 of 2023) [2023] KEELRC 3253 (KLR)", Case Analysis (2023). Cause No E072 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3253/eng@2023-12-07

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