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ELRCStruck OutPetition dated 10th July, 2023· [2024] KEELRC 841 (KLR)

Koech v County Government of Kericho & another (Petition E004 of 2023) [2024] KEELRC 841 (KLR)

Employment and Labour Relations Court
3 April 2024
DNDavid Nderitu
1,339 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A county government employee lost her case because she went straight to court instead of first appealing to the Public Service Commission.

What this practically means

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Executive summary

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The petitioner, a former employee of a county government, filed a petition seeking declarations that the respondents violated various constitutional articles and the Fair Administrative Actions Act through the purported verification of her academic and professional certificates and her subsequent termination. She sought general damages, maximum statutory compensation of Kshs.869,640, service gratuity of Kshs.202,191.3, and one month's pay in lieu of notice. The respondents filed grounds of opposition and a preliminary objection arguing that the court lacked jurisdiction under Section 77 of the County Governments Act, 2012 and Section 87(2) of the Public Service Commission Act, 2017, which required the petitioner to appeal to the Public Service Commission, and that the suit was an abuse of process. The respondents relied on Owners of the Motor Vessel 'Lilian S' and Catherine Gathoni Otenyo. The petitioner relied on the ELRC's unlimited original jurisdiction under Section 12(1) of the ELRC Act and contended that constitutional issues raised could not be granted by the PSC, and that the PO failed the Mukhisa Biscuits threshold. The court held the PO raised pure points of law and met the Mukhisa Biscuits threshold. It found the petitioner had not demonstrated that she had exhausted the statutory alternative dispute resolution mechanism, and held she was in violation of the doctrine of exhaustion by adopting the court as the first port of call. The petition was struck out for lack of jurisdiction, with each party bearing their own costs. Judgment was delivered virtually at Nakuru on 3rd April 2024.

Key legal issues

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01

Whether the Employment and Labour Relations Court could entertain a petition by a county government employee who had not first appealed to the Public Service Commission

Holding

The petition was struck out for lack of jurisdiction and violation of the doctrine of exhaustion; the petitioner was bound to appeal to the Public Service Commission under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act

Reasoning

The court found that the gist of the petition was breach of an employment contract resulting in alleged unlawful termination, an ordinary employment dispute. As a county government employee, the petitioner was subject to the Public Service Commission Act and its regulations. She had not demonstrated that she exhausted the alternative resolution mechanism or that it could not yield justice, and the court held she was in violation of the doctrine of exhaustion by adopting the court as the first port of call.

p. 4
02

Whether the preliminary objection met the Mukhisa Biscuits threshold

Holding

Yes - the PO raised pure points of law and was properly raised and grounded

Reasoning

The court held the PO raised pure questions of law regarding whether the petition violated Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, and that it met the threshold in Mukhisa Biscuit (supra). No facts requiring ascertainment by evidence were needed; the defect went to jurisdiction, which the court could determine at the threshold stage.

p. 3

Legal principles established

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  • Where a litigant files constitutional petitions to avoid exhaustion of statutory pre-court alternative remedies, the court must disallow such abuse of process

Court orders

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  1. 1.The petition is struck out as the court lacks jurisdiction over the same
  2. 2.Each party shall meet own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 27, 28, 31, 47, 50, 232, 244, 234(2)
  • Fair Administrative Actions ActSections 3, 4 and 5
  • County Governments Act, 2012Section 77(1)
  • Public Service Commission Act, 2017Sections 74, 87(2)
  • Employment ActContract of service provisions
  • Employment and Labour Relations Court ActSection 12(1)

Cases cited (4)

  • Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1
    (1989) KLR 1
  • Catherine Gathoni Otenyo v Governor County Government of Kakamega & 3 Others (2022) eKLR
    (2022) eKLR
  • Mukhisa Biscuits Manufacturers Ltd v West End Distributors Ltd
  • Abidha Nicholus v AG & Others Petition No. E007 of 2023
    Petition No. E007 of 2023
Jurisdiction invoked
Articles 10, 19, 20, 27, 28, 31, 47, 50, 232 and 244 of the Constitution of Kenya as invoked in the petition; jurisdiction challenged under 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, "Koech v County Government of Kericho & another (Petition E004 of 2023) [2024] KEELRC 841 (KLR)", Case Analysis (2024). Petition dated 10th July, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/841/eng@2024-04-03

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