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ELRCStruck OutNot stated in judgment (Motion application dated 10th September, 2024)· [2024] KEELRC 2385 (KLR)

Nyaoga v Kisii County Assembly Service Board & another (Petition E035 of 2024) [2024] KEELRC 2385 (KLR)

Employment and Labour Relations Court
30 September 2024
2,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a former Kisii County Assembly Clerk's emergency challenge to his removal because he had not first appealed to the Public Service Commission.

What this practically means

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Executive summary

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The Applicant, former Clerk of the County Assembly of Kisii who was on suspension since August 2022, moved the court by a motion dated 10th September 2024 seeking conservatory orders staying the County Assembly's resolution of 29th August 2024 revoking his appointment as Clerk, the attendant Gazette Notice, and restraining the Respondents from removing him from the payroll or recruiting a replacement. He also sought exemption from the obligation to exhaust alternative statutory remedies. He argued that the disciplinary process breached Section 23 of the County Assembly Services Act, lacked quorum, and denied him fair hearing, and that the Public Service Commission was not the appropriate forum for enforcement of fundamental rights. The Respondents opposed, contending the court lacked jurisdiction for want of exhaustion of remedies under Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act; that the Applicant had concealed a pending PSC appeal and prior litigation; and that the court could not conduct a merit review of the removal. Framing two issues — jurisdiction and entitlement to reliefs — the court applied the exhaustion doctrine, noting the Supreme Court's guidance in Nicholus that alternative remedies bar constitutional relief only if inadequate, but holding that nothing unique in the removal process warranted exemption. It found the Court of Appeal's earlier decision between the same parties (Nyaoga v Chairman Kisii County Assembly) dispositive on exhaustion. The court held it lacked jurisdiction in the first instance, struck out the motion and petition, and awarded costs to the Respondents.

Key legal issues

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01

Whether the court has jurisdiction over the motion and petition for want of exhaustion of alternative remedies

Holding

The court lacks jurisdiction in the first instance because the Petitioner has not exhausted the dispute resolution mechanisms under Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, and no exceptional circumstances justify exemption

Reasoning

The court applied the exhaustion doctrine, noting that the issues raised concerned the conduct of the disciplinary process, which can be addressed through the statutory appeal to the Public Service Commission. The Court of Appeal in Nyaoga v Chairman Kisii County Assembly, between the same parties, had already held that no exceptional circumstances were shown to bypass internal remedies. The decision of the Supreme Court in Nicholus does not assist because the alternative remedy here was not shown to be inadequate.

p. 5
02

Whether the Applicant is entitled to the conservatory reliefs sought

Holding

Having found the court lacks jurisdiction, the reliefs fell away and the motion and petition were struck out

Reasoning

The jurisdictional finding disposed of the matter before the merits of the conservatory orders could be considered. The court held that once jurisdiction was lacking, the remaining issues were moot for purposes of the interlocutory application.

p. 5

Legal principles established

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  • Availability of an alternative remedy does not necessarily bar constitutional relief, but courts must scrutinise the purpose of the relief and the adequacy of the alternative remedy
  • Exemption from the obligation to exhaust administrative remedies is granted only in exceptional circumstances under Section 9(4) of the Fair Administrative Actions Act

Court orders

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  1. 1.The motion and the petition are struck out with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(c), 234(2)(i)
  • Fair Administrative Actions ActSection 9(4)
  • Employment and Labour Relations Court ActSection 12(1)(a) & (3)(i) & (iii)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 10, 45, 47 & 54
  • County Assembly Services ActSection 23(1)(a)(b) and (c)
  • County Government ActSection 77
  • Public Service Commission Act, 2017Sections 85 and 87
  • County Governments ActNot specified
  • Employment ActNot specified (referenced in quoted Court of Appeal extract)

Cases cited (4)

  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    [2023] KESC 113 (KLR)
  • Mike Mbuvi Sonko
  • Republic v National Environment Management Authority ex parte Sound Equipment Ltd
    (2011) eKLR
  • Nyaoga v Chairman Kisii County Assembly & 3 others
    (Civil Appeal E034 of 2023) [2023] KECA 1540 (KLR)
Jurisdiction invoked
Articles 22 and 23(3)(c) of the Constitution, Section 9(4) of the Fair Administrative Actions Act, Section 12(1)(a) & (3)(i) & (iii) of the Employment and Labour Relations Court Act and Rules 10, 45, 47 & 54 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Nyaoga v Kisii County Assembly Service Board & another (Petition E035 of 2024) [2024] KEELRC 2385 (KLR)", Case Analysis (2024). Not stated in judgment (Motion application dated 10th September, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2385/eng@2024-09-30

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