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ELRCStruck Out· [2023] KEELRC 3354 (KLR)

Murimi v County Governemnt of Kirinyaga & 2 others; Public Service Commission & another (Interested Parties) (Employment and Labour Relations Petition E003 of 2022) [2023] KEELRC 3354 (KLR)

Employment and Labour Relations Court
20 December 2023
OMOnesmus N. Makau
3,119 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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If Kenya's Public Service Commission has already ruled in your favour, ask the Employment Court to adopt and enforce that decision instead of filing a fresh lawsuit.

What this practically means

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Executive summary

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The Petitioner, a Clinical Officer formerly employed by the County Government of Kirinyaga, was dismissed for alleged participation in an unprotected health workers' strike in 2019. He appealed to the Public Service Commission, which on 14th April 2021 allowed the appeal and directed the County Public Service Board to reinstate him. The direction was not implemented, and the Petitioner filed a petition seeking declarations of constitutional violation, reinstatement, payment of unpaid salaries and benefits, damages, and an order of mandamus to enforce the PSC decision. The Respondents opposed, maintaining the dismissal was for a valid reason following fair procedure, that the PSC appeal was not served on them, and that the position sought no longer exists. The court framed five issues but determined only the first: whether the petition was properly before it. The court held that since the PSC had conclusively determined the merits of the dismissal and its decision remained un-set-aside, the petitioner's remedy was to file the decision for adoption and enforcement under section 89 of the Public Service Commission Act, a summary, non-litigious process, rather than to file a fresh petition re-litigating the merits. The court declined to determine the merits, struck out the petition, directed the petitioner to move the court properly, and awarded no costs, citing the absence of clear guidance in the ELRC Procedure Rules for litigants on the adoption process.

Key legal issues

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01

Whether the petition was properly before the court

Holding

The petition was improperly brought to the extent it invited the court to re-litigate the merits of the dismissal, which had been conclusively determined by the PSC on appeal; the proper course was a miscellaneous application to adopt and enforce the PSC decision.

Reasoning

Section 89 of the Public Service Commission Act allows a person affected by a Commission decision to file that decision for enforcement in the ELRC. The petitioner's dismissal had been litigated on appeal before the PSC, which allowed the appeal on 14th April 2021 and directed reinstatement. That decision had not been set aside. The petitioner ought to have sought adoption and enforcement of that decision rather than filing a fresh suit on the merits.

p. 6
02

Merits of the termination, fair procedure and alleged constitutional violations

Holding

Not determined; the court struck out the petition without expressing any view on the merits.

Reasoning

Because the court found the jurisdiction had been improperly invoked, it declined to determine the petition on the merits. Issues of valid reason, fair procedure, constitutional violations and entitlement to relief were left undecided, with the petitioner at liberty to approach the court properly.

p. 7

Legal principles established

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  • Where the Public Service Commission has determined an appeal under Part VI of the Public Service Commission Act, the proper process for a successful appellant is to file the Commission's decision for adoption by the ELRC as its judgment and enforce it summarily, not to file a fresh petition re-litigating the merits of the dismissal.

Court orders

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  1. 1.The petition is struck out.
  2. 2.The petitioner is directed to move the court properly (by way of a miscellaneous application for adoption and enforcement of the PSC decision).
  3. 3.No costs awarded - each matter left without a costs order in the petitioner's favour.

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19(2), 20, 22, 23, 25, 27, 28, 41, 41(1), 43, 47, 47(1), 50, 51, 162(2)(a)
  • Fair Administrative Actions Actsection 4
  • Employment Act 2007sections 35, 36, 41, 43, 44, 45, 45(2)(a) & (b), 49
  • County Governments Act 2012sections 57, 58, 59
  • Public Service Commission Actsection 89
  • Labour Relations Actsection 80(1)
  • Evidence Actsection 106B
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Joseph Maina Theuri v Gitonga Kabugi & 3 Others
    [2017] eKLR
  • Kenya County Government Workers' Union v County Government of Nyeri & Another
    [2015] eKLR
  • Joash Alubale Jacob v Mega Pack Liited
    [2019] eKLR
  • David Sirenge Kiganane v Mega Pack Liited
    [2019] eKLR
  • Mary Wagikuyu Komu v The Kenya Hospital Association T/A The Nairobi Hospital
    [2016] eKLR
  • Jackson Butiya v Eastern Produce Limited
    Industrial Court Cause No 335 of 2011
  • David Njeka v Lavage Dry Cleaners Limited
    [2013] eKLR
  • Mathew Lucy Cherusa v Povelle Sisters of Belgamo t/a Blessed Lois Palazzalo Health Centre
    [2013] eKLR
  • Jennifer Osodo v Teachers Service Commission
    [2013] eKLR
  • County Government of Kirinyaga v Kenya Medical Practitioners Pharmacists and Dentist Union & 2 others and Cabinet Secretary Labour & Social Protection & Another
    Nairobi ELRC 340 of 2019
Jurisdiction invoked
Article 162(2)(a) of the Constitution read with section 89 of the Public Service Commission Act (enforcement of PSC decisions by the ELRC)

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, "Murimi v County Governemnt of Kirinyaga & 2 others; Public Service Commission & another (Interested Parties) (Employment and Labour Relations Petition E003 of 2022) [2023] KEELRC 3354 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3354/eng@2023-12-20

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