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ELRCStruck OutNot stated in the judgment text· [2024] KEELRC 503 (KLR)

Maina v County Government of Nakuru (Cause E034 of 2023) [2024] KEELRC 503 (KLR)

Employment and Labour Relations Court
7 March 2024
DNDAVID NDERITU
2,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, a Senior Public Health Officer employed by the respondent county government, filed a memorandum of claim dated 24th July 2023 seeking declarations that the stoppage of his salary for 23 months (January 2021 to November 2022) and his resultant constructive dismissal were null and void, compensation of up to twelve months' wages, withheld remuneration of Kshs.2,843,260, loan penalties and debt collection charges from Equity Bank and KCB, reinstatement of medical cover, interest and costs. The respondent denied liability and raised a preliminary objection that the court lacked jurisdiction because the claimant had not exhausted the appeal mechanism to the Public Service Commission under section 77 of the County Governments Act, 2012 and section 87(2) of the Public Service Commission Act, 2017, nor the review process under the Discipline Manual for the Public Service 2016. The claimant opposed, invoking the ELRC's unlimited original jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act, and section 9 of the Fair Administrative Action Act. The court found the PO purely on points of law and uncontested in fact, meeting the Mukisa Biscuits threshold. Relying on the Court of Appeal decision in the Ogutu and Odongo appeals, which this court was bound to follow, it held that 'may' in section 77 means 'shall', rendering the PSC appeal mandatory, and that filing in court without exhausting that process was an abuse of the doctrine of exhaustion. The cause was struck out as prematurely and un-procedurally filed, with liberty to pursue the claim before the PSC subject to limitation, and each party ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC where statutory appeal to the PSC has not been exhausted

Holding

The preliminary objection succeeded; the court lacked jurisdiction over a claim filed without exhausting the PSC appeal process

Reasoning

The court held that section 87(2) of the Public Service Commission Act is mandatory, and that 'may' in section 77 of the County Governments Act means 'shall'. Relying on the Court of Appeal decision in the Ogutu and Odongo appeals, this court, being bound, found the claim an abuse of the doctrine of exhaustion. Payment of salary being a core term of the contract, the dispute nonetheless fell first to the PSC appeal mechanism.

p. 6
02

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

The PO was purely on points of law and the facts were not contested, so it met the threshold

Reasoning

The court found that the PO was based on pure points of law and that the factual basis was uncontested - both parties agreed the claimant's salary was stopped for about 23 months. Citing Mukisa Biscuits, Oraro v Mbaja and JN & 5 Others, the court held the objection properly disposed of the claim without hearing evidence.

p. 4

Legal principles established

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  • An aggrieved county public officer must exhaust the appeal process to the Public Service Commission under section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act before filing proceedings in court
  • The word 'may' in section 77 of the County Governments Act implies 'shall', making the appeal to the PSC mandatory

Court orders

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  1. 1.This cause is struck out with each party ordered to meet own costs.
  2. 2.Subject to the law of limitation the claimant is free to pursue his claim before the PSC in accordance with the statutory provisions cited above.

Authorities

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Legislation

  • County Governments ActSection 77
  • Public Service Commission ActSection 87(2)
  • Constitution of Kenya, 2010Articles 162(2)(a), 165(5) & (6), 22(1), 10, 232
  • Employment and Labour Relations Court ActSection 12
  • Fair Administrative Action ActSection 9
  • Discipline Manual for the Public ServicePart 5.0

Cases cited (11)

  • Kenya Breweries Limited & Another v Keroche Breweries Limited
    (2020) eKLR
  • Ndoli Hynes & 4 Others v Vihiga County Government
    (2022) eKLR
  • Abdikadir Suleiman v County Government of Isiolo & Another
    (2015) eKLR
  • Hussein Wanyama Mulebo & Others v County Public Service Board of Bungoma & Others
    (2022) eKLR
  • Sofia Mbone Amadi & Others v County Government of Vihiga
    (2021) eKLR
  • Mukhisa Biscuits Manufacturing Limited v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • JN & 5 Others v Board of Management of St. George School Nairobi & Another
    (2017) eKLR
  • Stephen Michael Oduor Ogutu v The Governor of Nakuru County & 3 Others
    Nakuru ELRC Petition No. E016 of 2022
  • Kenneth Odongo v The Nakuru County Public & 5 Others
    Nakuru ELRC Petition No. E017 of 2022
  • Chrispinus Likuyuni Lumiti & Another v County Chief Officer, Public Service Board, Kakamega County
    (2021) eKLR
Jurisdiction invoked
Section 77 of the County Governments Act, 2012 and section 87(2) of the Public Service Commission Act, 2017

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, "Maina v County Government of Nakuru (Cause E034 of 2023) [2024] KEELRC 503 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/503/eng@2024-03-07

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