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ELRCAllowedNot stated in judgment· [2024] KEELRC 1910 (KLR)

County Assembly Service Board, Nyamira County & 3 others v Bundi & 11 others (Appeal E021 of 2023) [2024] KEELRC 1910 (KLR)

Environment and Land Court / High Court at Kisumu (sitting as appellate court over Magistrate's Court, Nyamira)
25 July 2024
CBC. N. Baari
2,116 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

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County Assembly employees in Kenya must appeal to the Public Service Commission before suing over dismissal — courts will strike out claims filed without doing so.

What this practically means

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Executive summary

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The Respondents, employees of the County Assembly Service Board, sued at the Nyamira Magistrate's Court alleging unlawful termination and obtained ex parte conservatory orders on 11th January 2023 suspending implementation of their termination letters. The Appellants filed a preliminary objection contending that the Magistrate's Court lacked jurisdiction because the Respondents had not exhausted the appellate procedure before the Public Service Commission under Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Sections 87 and 88 of the Public Service Commission Act. On 28th March 2023 the Magistrate ruled that the court had jurisdiction since the reliefs sought were incapable of being granted by the PSC. The Appellants appealed. C. N. Baari J framed a single issue: whether the trial court had jurisdiction. Relying on the Court of Appeal decisions in Hulbhai Gedi Abdille and Sound Equipment, the Court applied the exhaustion doctrine. It construed Section 77(1) of the County Governments Act, which confers appeal rights to the PSC against decisions of the County Public Service Board or persons exercising disciplinary control against county public officers, and the statutory definition of 'county public officer'. It held that employees of County Assemblies are county public officers, and the termination was a disciplinary control decision by the County Assembly Service Board, so the Respondents were bound to appeal to the PSC first. The Court allowed the appeal, set aside the trial court's ruling in its entirety, struck out the claim before the trial court, and made no orders on costs.

Key legal issues

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01

Whether the Respondents, as employees of the County Assembly Service Board, were county public officers subject to the exhaustion doctrine under Section 77 of the County Governments Act

Holding

The court held that the Respondents were county public officers and were therefore required to appeal to the Public Service Commission before going to court; the Magistrate's Court lacked jurisdiction.

Reasoning

Section 77(1) of the County Governments Act gives appeal rights to persons dissatisfied by decisions of the County Public Service Board or persons exercising disciplinary control against any county public officer. The County Governments Act defines 'county public officer' broadly as any person appointed by the county government holding or acting in a county public office. The Respondents' termination was a disciplinary control decision by the County Assembly Service Board, whose employees fall within that definition. The exhaustion doctrine, as explained in Hulbhai Gedi Abdille and Sound Equipment, required them to invoke the PSC appellate process first.

p. 5
02

Whether the trial Magistrate correctly upheld jurisdiction on the basis that the reliefs sought could not be granted by the Public Service Commission

Holding

The court rejected this reasoning and set the ruling aside, holding that the claim was premature without prior recourse to the PSC.

Reasoning

The trial Magistrate had reasoned that the reliefs sought (suspension of termination letters and salary arrears) were incapable of being granted by the PSC. The High Court, relying on the Court of Appeal's guidance on exhaustion, held that a party should not bypass the statutory appellate process save in exceptional circumstances, and that the Respondents ought to have lodged an appeal before the PSC before invoking the court's jurisdiction.

p. 6

Legal principles established

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  • Employees of County Assemblies are county public officers subject to the appellate mandate of the Public Service Commission under Section 77 of the County Governments Act, and must exhaust that mechanism before invoking the court's jurisdiction
  • Where the statutory appellate mechanism is not exhausted, the Magistrate's Court lacks jurisdiction to entertain the claim in the first instance

Court orders

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  1. 1.The appeal succeeds and the decision of the Trial Court is set aside in its entirety
  2. 2.The claim before the Trial Court is struck out
  3. 3.No orders on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 234(2)(i), 235(1)(c), 162(2)(a), 165(5) and (6), 22(1)
  • County Governments ActSections 77(1), 77(2)
  • Public Service Commission ActSections 85(c), 86(1), 87, 87(2), 88
  • Public Service Commission (County Appeals Procedures) Regulations, 2022Not specified
  • Employment and Labour Relations Act, 2011Section 12
  • Civil Procedure Act (Order 42 Rule 2 - Civil Procedure Rules)Order 42 Rule 2

Cases cited (7)

  • Secretary County Public Service Board and another v Hulbhai Gedi Abdille
    (2017) eKLR
  • Speaker of the National Assembly v Njenga Karume
    (2008) 1 KLR 425
  • Abdikadir Suleiman v County Government of Isiolo & another
    [2015] eKLR
  • Thuranira Salesio Mutuma v County Public Service Board & 2 others
    [2019] eKLR
  • Republic v National Environment Authority Ex Parte Sound Equipment Ltd
    [2011] eKLR
  • Kiken Properties Limited & Anor v Vipingo Ridge Limited
    [2020] eKLR
  • Breweries Ltd v Auther Washington Okeyo
    (2002) eKLR
On appeal from
Magistrate's Court at Nyamira
Not stated in judgment
Jurisdiction invoked
Appeal against ruling on preliminary objection under the Civil Procedure Act; jurisdictional challenge based on Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Sections 87 and 88 of the Public Service Commission 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, "County Assembly Service Board, Nyamira County & 3 others v Bundi & 11 others (Appeal E021 of 2023) [2024] KEELRC 1910 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1910/eng@2024-07-25

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