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ELRCDismissedNot stated in the judgment· [2024] KEELRC 104 (KLR)

Tum v Public Service Board of Kericho County & 2 others; Chelangat & 11 others (Interested Parties) (Petition E014 of 2022) [2024] KEELRC 104 (KLR)

Employment and Labour Relations Court
1 February 2024
DNDavid Nderitu
4,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a challenge to Kericho County's Chief Officer recruitment, ruling the petitioner should have first used statutory appeal channels before going to court.

What this practically means

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Executive summary

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The petitioner, acting in person, petitioned the ELRC at Nakuru challenging the recruitment of twelve Chief Officers for the County Government of Kericho. He sought declarations that the recruitment process and the resulting appointments were unconstitutional, null and void ab initio for violating Articles 10, 27, 35, 73 and 232 of the Constitution and Section 65 of the County Governments Act, particularly on transparency, public participation, access to information, and the two-thirds gender rule, together with an order compelling a fresh, gender-compliant recruitment. The 1st and 2nd respondents filed a replying affidavit and supplementary affidavit contending the process complied with Sections 45, 57 and 59 of the County Governments Act, that no objection was raised to any appointee's qualifications, that the two-thirds gender rule is to be realized progressively absent legislation, and that a consent in a related Nakuru ELRC petition had already declared the process lawful. The court framed three issues: jurisdiction, entitlement to reliefs, and costs. Relying on the binding Court of Appeal decision in Nakuru Civil Appeal Nos. E136 and E137 of 2022, it held the ELRC lacks jurisdiction over recruitment disputes where no employer-employee relationship has crystallized, and that the petitioner was bound to exhaust the statutory remedies in Section 77 of the County Governments Act and Sections 85–87 of the Public Service Commission Act before approaching the court, giving no reason for failing to do so. On the gender-rule claim, the court held the issue was not properly before it, being a constitutional question awaiting implementing legislation, with no evidence of discrimination against qualified female or minority candidates. The petition was accordingly dismissed with no orders as to costs, the court noting the petition was public-spirited litigation.

Key legal issues

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01

Jurisdiction of the ELRC over recruitment of Chief Officers before/without an employment relationship

Holding

The court lacks jurisdiction; the petitioner ought to have first exhausted the statutory mechanisms under Section 77 of the County Governments Act and Sections 85–87 of the Public Service Commission Act

Reasoning

Relying on the binding Court of Appeal decision in Nakuru Civil Appeal No. E136 of 2022 (consolidated with E137 of 2022), the court held ELRC has no jurisdiction where an employer-employee relationship has not crystallized. The conclusion of the recruitment process did not alter this, as exhaustion of the statutory appeal to the PSC remained mandatory. The petitioner gave no reason for bypassing that mechanism, and the Abidha Nicholus exceptions were not engaged.

p. 7
02

Whether the two-thirds gender rule claim is justiciable before the ELRC

Holding

The issue is not properly before this court; it is a constitutional question affecting all public institutions and awaits implementing legislation

Reasoning

The court held the gender-rule issue is neither an employer-employee dispute within ELRC jurisdiction nor ripe for adjudication absent legislation implementing the rule. It further found no evidence that suitably qualified female or minority candidates were discriminated against in the appointments. The key to unlocking the issue lies with the Legislature, not the Judiciary.

p. 8
03

Whether the recruitment process was challenged on the evidence

Holding

The detailed recruitment process set out by the 1st and 2nd respondents was unchallenged; no qualification or suitability of the appointees was impugned

Reasoning

The respondents detailed the advertisement, shortlisting, interviews, report and vetting. The petitioner filed no evidential rebuttal and raised no objection to any appointee's qualifications or suitability, only the gender imbalance. The court therefore assumed the respondents' evidence to be unchallenged.

p. 7

Legal principles established

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  • Jurisdiction is everything; once lacking, a court must down its tools
  • ELRC has no jurisdiction over recruitment disputes where an employer-employee relationship has neither crystallized nor been created, and statutory remedies must be exhausted
  • The two-thirds gender rule is to be realized gradually and progressively absent implementing legislation

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution and 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, "Tum v Public Service Board of Kericho County & 2 others; Chelangat & 11 others (Interested Parties) (Petition E014 of 2022) [2024] KEELRC 104 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/104/eng@2024-02-01

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