Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in extract· [2024] KEELRC 1285 (KLR)

Union of Kenya Civil Servants (UKCS) v County Public Sevice Board, County Government of Laikipia & 2 others (Employment and Labour Relations Cause E001 of 2024) [2024] KEELRC 1285 (KLR)

Employment and Labour Relations Court
23 May 2024
1,953 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court told a trade union to first appeal county employment changes to the Public Service Commission, but kept protective court orders in place meanwhile.

What this practically means

#

Executive summary

#
The 2nd and 3rd Respondents raised a preliminary objection seeking striking out of the Petition and Notice of Motion dated 28th December 2023, contending that the court lacked jurisdiction because the Petitioner's members, aggrieved by a decision affecting county public officers, should first have appealed to the Public Service Commission under section 77 of the County Government Act and sections 85(c) and 87(2) of the PSC Act, invoking the doctrine of exhaustion. The Petitioner opposed, arguing the petition challenged the legality of the County Secretary's administrative action (converting permanent and pensionable employment to fixed-term contracts), a matter outside the PSC's competence, and that the objection failed the Mukisa Biscuits threshold because it required ascertainment of facts. Applying Mukisa Biscuits, the court found the objection raised a pure point of law on jurisdiction. It held that the ELRC has original jurisdiction under Articles 22, 23, 162(2)(a) and 165(5) over alleged violations of fair labour practices and fair administrative action. However, section 9 of the Fair Administrative Actions Act mandated exhaustion of the statutory appeal mechanism. Finding a regulatory gap - the PSC cannot grant interlocutory or conservatory relief under Regulation 13 of the 2022 Regulations - the court held the Petitioner was justified in seeking conservatory relief from the court, while the merits lie before the PSC. The court stayed further proceedings, maintained the conservatory orders of 24th January 2024 pending the PSC appeal, and gave the Petitioner 30 days to move the PSC for leave to appeal, with mention on 18th September 2024. No costs order appears in the ruling.

Key legal issues

#
01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

It did, as it raised a pure point of law on jurisdiction

Reasoning

The court applied the Mukisa Biscuits test, holding that an objection premised on prematurity and lack of jurisdiction arising from a statutory appeal mechanism raises a pure point of law requiring no ascertainment of facts and can properly be disposed of as a preliminary objection.

p. 3
02

Whether the ELRC has jurisdiction over the petition

Holding

Yes, the court has original jurisdiction under Articles 22, 23, 162(2)(a) and 165(5) over alleged violations of fair labour practices and fair administrative action

Reasoning

The petition challenged the legality of the County Secretary's decision converting permanent and pensionable employment to fixed-term contracts, which falls within the court's employment and labour relations jurisdiction; the court is therefore seized with original jurisdiction.

p. 4
03

Whether the alternative remedy before the PSC must first be exhausted

Holding

Yes, section 77 of the County Government Act and section 87(2) of the PSC Act prescribe a mandatory appeal mechanism, but the court may retain interlocutory conservatory orders because the PSC cannot grant such relief

Reasoning

Section 9 of the Fair Administrative Actions Act required exhaustion of the statutory remedy. However, Regulation 13 of the 2022 Regulations reveals a gap: the PSC cannot grant interlocutory/conservatory orders. The petitioner was therefore justified in seeking that relief from the court, while the merits belong to the PSC.

p. 5

Legal principles established

#
  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Under section 9(2) of the Fair Administrative Actions Act a court shall not review an administrative action unless available internal and statutory remedies are first exhausted, save in exceptional circumstances
  • Where the statutory alternative forum cannot grant adequate interlocutory/conservatory relief, a party is justified in approaching the court, but the merits remain for the PSC

Court orders

#
  1. 1.Stay of further proceedings in the petition to allow the statutory appeal mechanism before the PSC to be exhausted
  2. 2.Conservatory/interlocutory orders made on 24th January 2024 to remain in force pending final determination of the appeal before the PSC
  3. 3.Petitioner granted 30 days to move the PSC for leave to file appeal
  4. 4.Petition to be mentioned on 18th September 2024

Authorities

#

Legislation

  • County Government Actsection 77
  • Public Service Commission Actsections 85(c) and 87(2)
  • Public Service Commission (County Government Public Service Appeals Procedures) Regulations 2022Regulations 10(1)(2) and (3); Regulation 13
  • Fair Administrative Actions Actsection 9
  • Constitution of KenyaArticles 22, 23, 162(2)(a), 165(5), 234
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Samuel Kamau Macharia v Kenya Commercial Bank & Another
    [2012] eKLR
  • Secretary Public Service Board & Another v Hubhai Gedi Abdile
    [2017] eKLR
  • Abdi v Governor, Kakamega County Government & 2 others (Employment & Labour Relations Court Appeal E004 of 2022)
    [2022] KEELRC 1155 (KLR)
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR
Jurisdiction invoked
Articles 22, 23, 162(2)(a) and 165(5) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Union of Kenya Civil Servants (UKCS) v County Public Sevice Board, County Government of Laikipia & 2 others (Employment and Labour Relations Cause E001 of 2024) [2024] KEELRC 1285 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1285/eng@2024-05-23

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