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ELRCStruck OutPetition dated 29th March 2023, amended 16th February 2024· [2024] KEELRC 1869 (KLR)

Ouma v County Government of Kisumu & 2 others (Petition E011 of 2023) [2024] KEELRC 1869 (KLR)

Employment and Labour Relations Court
18 July 2024
3,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly County Secretary of Kisumu County, was appointed on 21st October 2022 and his employment terminated by letter dated 28th March 2023. He filed a constitutional petition seeking declarations that the termination breached Articles 10, 41 and 47, an order of certiorari quashing the termination, prohibition, and in the alternative compensation including notice pay of Kshs 413,079, maximum 12 months' compensation, salary arrears of Kshs 1,230,316, general, exemplary and aggravated damages, a certificate of service, costs and interest. The Respondents opposed, arguing the petition offended the exhaustion doctrine under Article 234(2)(i), the Public Service Commission Act and Section 77(1) of the County Governments Act, and the doctrine of constitutional avoidance, as the dispute was a private employer-employee matter resolvable under the Employment Act. The court framed three issues: jurisdiction, constitutional avoidance, and entitlement to reliefs. On jurisdiction, it held the County Secretary is not a CEC member or state officer in that sense, the dismissal was the Governor's decision under Section 44(2)(c) of the County Governments Act, and PSC appeals lie only against County Public Service Board decisions - so exhaustion did not oust jurisdiction. However, on constitutional avoidance, applying the Communications Commission and Sumayya Athmani decisions, the court held the reliefs sought were Employment Act remedies that should have been pursued in a normal claim. Finding the petition disclosed no constitutional cause of action, the court struck it out with no orders on costs.

Key legal issues

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01

Whether the exhaustion doctrine ousted the court's jurisdiction

Holding

Jurisdiction not ousted because the dismissal was a decision of the Governor under Section 44(2)(c) of the County Governments Act, not of the County Public Service Board, hence outside the PSC's appellate mandate

Reasoning

Section 44 establishes the office of County Secretary as secretary to the county executive committee, not a CEC member, so the 'state officer' definition covering CEC members does not apply. Section 44(2)(c) empowers the Governor to dismiss the County Secretary. Section 77 appeals to the PSC lie only against decisions of the County Public Service Board, so the Governor's dismissal decision was not appealable to PSC and exhaustion did not bar the suit.

p. 7
02

Whether the petition violated the doctrine of constitutional avoidance

Holding

Yes - the reliefs sought are remedies available under the Employment Act and should have been pursued in a normal claim, not a constitutional petition

Reasoning

Applying the Communications Commission and Sumayya Athmani authorities, where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging that legislation or showing its remedies inadequate. The reliefs sought (declaration of unlawful termination, compensation, salary arrears) are all Employment Act remedies, so the petition did not raise a constitutional question.

p. 7
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Not determined - the petition was struck out as incompetent before reaching the merits

Reasoning

Having found the petition did not disclose a cause of action anchored on the Constitution, the court struck it out rather than assess the reliefs of reinstatement, compensation, notice pay, salary arrears or constitutional damages.

p. 7

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, it is not permissible to base a cause of action directly on the Constitution
  • A County Secretary is not a County Executive Committee Member and the 'state officer' definition including CEC members does not apply; PSC appellate mandate under Section 77 covers decisions of the County Public Service Board, not the Governor

Court orders

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  1. 1.The petition is struck out
  2. 2.No orders on costs
Jurisdiction invoked
Articles 41 and 47 of the Constitution of Kenya 2010 (petition for enforcement of rights); jurisdiction contested on exhaustion grounds under Article 234(2)(i), Sections 85, 86(2)/87(2) of the Public Service Commission Act and Section 77(1) of the County Governments Act

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, "Ouma v County Government of Kisumu & 2 others (Petition E011 of 2023) [2024] KEELRC 1869 (KLR)", Case Analysis (2024). Petition dated 29th March 2023, amended 16th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1869/eng@2024-07-18

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