Nyongesa & 2 others v County Government of Bungoma & another (Employment and Labour Relations Petition E015 of 2023) [2024] KEELRC 630 (KLR)
The bottom line
#The High Court ruled that Kenyans challenging county recruitment on constitutional grounds can go straight to court without first appealing to the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to exhaust the appeal to the Public Service Commission under section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act ousted the court's jurisdiction
No - the exception to the doctrine of exhaustion applied because the petition sought declarations of constitutional violations requiring constitutional interpretation, which the Commission cannot undertake.
The court reviewed the Court of Appeal jurisprudence in William Odhiambo Ramogi and NGOs Co-ordination Board v EG, and the Supreme Court's upholding of the exhaustion doctrine in Abidha Nicholus. It distinguished the Mulebo decision where prayers sought ordinary employment relief. Here the petitioners sought declarations of violations of Articles 10, 35, 41, 75 and 232 and revocation of appointments, requiring constitutional interpretation outside the Commission's competence, making section 77 an inadequate and unsuitable forum.
Whether the petition was incompetent, bad in law and an abuse of court process
Having found jurisdiction, the petition is properly before the court and competent.
The competency ground was parasitic on the jurisdictional objection. Once the court found that the exhaustion exception applied and that it had jurisdiction, the claim of incompetence and abuse of process fell away, and the petition was allowed to proceed to pre-trial directions.
Legal principles established
#- Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations claimed are not mere bootstraps, the suit is not barred by the doctrine of exhaustion.
- A statutory appeal forum is unsuitable and exhaustion may be excused where the dispute requires constitutional interpretation and declaration of violations, which the Public Service Commission has no mandate to undertake.
Court orders
#- 1.The Notice of Preliminary Objection dated 5th January 2024 is dismissed.
- 2.Parties to proceed to take directions on the disposal of the petition as merged with the application.
- 3.No order as to costs.
- 4.Mention on 9th April 2024 for pre-trial directions; notice to issue.
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Articles 10, 23, 35, 41, 75, 232); County Governments Act, 2012; Public Service Commission Act, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa & 2 others v County Government of Bungoma & another (Employment and Labour Relations Petition E015 of 2023) [2024] KEELRC 630 (KLR)", Case Analysis (2024). Petition dated 25th October 2023 (filed 27th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/630/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.