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ELRCDismissedPetition dated 25th October 2023 (filed 27th October 2023)· [2024] KEELRC 630 (KLR)

Nyongesa & 2 others v County Government of Bungoma & another (Employment and Labour Relations Petition E015 of 2023) [2024] KEELRC 630 (KLR)

High Court of Kenya
22 February 2024
5,032 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by J.W. Keli of the High Court at Kakamega, dated 22nd February 2024, resolves a Notice of Preliminary Objection dated 5th January 2024 to a constitutional petition filed by two job applicants and their trade union challenging a Bungoma County recruitment exercise for medical staff. The petitioners sought declarations that the failure to appoint candidates from Bumula and Sirisia contravened sections 65, 68A and 68C of the County Governments Act and Articles 10, 75 and 232; that non-publication of score sheets violated Article 35; that failure to consider casual and contract nurses for permanent posts violated Article 41; that the appointment of Medical Officers was null and void; and sought revocation of the appointments and a fresh recruitment. The respondents objected that the court lacked jurisdiction because section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act required aggrieved persons to appeal to the Public Service Commission first, and that the petition was incompetent and an abuse of process. Relying chiefly on the Court of Appeal's decision in William Odhiambo Ramogi, as endorsed by the Supreme Court in Abidha Nicholus and the NGOs Co-ordination Board decision, the court held that the Commission has no mandate to interpret the Constitution and declare violations. Because the petition primarily sought declarations of constitutional violations, the statutory appeal mechanism was not an adequate and suitable forum, distinguishing this case from Hussein Wanyama Mulebo where ordinary employment relief was sought. The preliminary objection was dismissed with no order as to costs, and the parties were directed to take directions on the disposal of the petition as merged with the application, with mention on 9th April 2024 for pre-trial directions.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 10
02

Whether the petition was incompetent, bad in law and an abuse of court process

Holding

Having found jurisdiction, the petition is properly before the court and competent.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 5th January 2024 is dismissed.
  2. 2.Parties to proceed to take directions on the disposal of the petition as merged with the application.
  3. 3.No order as to costs.
  4. 4.Mention on 9th April 2024 for pre-trial directions; notice to issue.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35, 41, 75, 232, 234(2)(i)
  • County Governments Act, 2012sections 59(j), 65, 68A, 68C, 77(1)-(6)
  • Public Service Commission Act, 2017section 87(2)

Cases cited (13)

  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank Ltd
    (2012) eKLR
  • Hussein Wanyama Mulebo & 5 others v County Public Service Board & 2 others
    [2022] eKLR
  • Ismael Noo Onyango & Another v Siaya County Public Service Board and another
    (2018) eKLR
  • Secretary County Public Service Board and another v Hulbhai Gedi Abdulla
    (2017) eKLR
  • Republic v National Environment Management Authority ExParte Sound Equipment Ltd
    [2011] eKLR
  • Robert Khamala Situma & 8 Others v Acting Clerk of the Nairobi City County Assembly
    (2022) eKLR
  • Kamau v Kenya Accreditation Service
    (2021) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (interested parties)
    (2020) eKLR
  • R v Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others
    [2017] eKLR
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others
    (2014) eKLR
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    (Petition 16 of 2019) [2023] KESC 17 (KLR)
  • Abidha Nicholus v Hon Attorney General and Others
    SC Pet. No. E007 of 2023
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10, 23, 35, 41, 75, 232); County Governments Act, 2012; 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, "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.