Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2024] KEELRC 2599 (KLR)
The bottom line
#Kenya's Employment Court ruled it could hear a county worker's constitutional claim over unpaid salary, rejecting county attempts to block it.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of remedies under section 77 of the County Governments Act
The objection fails; the petition raises constitutional questions that only the Court can determine, so the PSC forum is not suitable.
The petition sought declaratory orders under Article 41 of the Constitution against two county governments following a transfer of service. Relying on Abdikadir Suleiman v County Government of Isiolo and Mohamed Ali Baadi, the Court held the alternative forum did not oust its original jurisdiction where the alternative fora do not provide an accessible, affordable, timely and effective remedy. The doctrine of exhaustion therefore did not bar the petition.
Limitation under section 90 of the Employment Act
The claims are not time barred as they constitute continuing injury.
The grievance concerned failure to manage the Petitioner's transfer, stoppage of salary and lack of duty allocation while he remained in service. Applying The German School Society v Ohany and the Supreme Court of India's concept of continuing wrong in Balakrishna S.P. Waghmare and M.R. Gupta, the Court held that time runs from cessation of the injury or termination of service, neither of which had occurred.
Anarita Karimi Njeru constitutional pleading threshold
The petition meets the threshold on a prima facie basis.
The Court perused the petition dated 19th March 2024 and found that clause B listed with reasonable precision the acts complained of: failure to release IPPD details and personal file on transfer, stoppage of salary, and failure to place the Petitioner on the payroll, citing infringement of constitutional articles and seeking declaratory orders. This satisfied the requirement of setting out the complaint, the provisions infringed and the manner of infringement.
Legal principles established
#- Where a constitutional petition seeking declaratory orders under Article 41 raises constitutional issues affecting two counties, the Public Service Commission forum under section 77 of the County Governments Act is not a suitable alternative forum and does not oust the Court's jurisdiction.
- Failure to complete an employee's transfer, stoppage of salary and non-allocation of duties while the employee is still in service amount to continuing injury, so section 90 of the Employment Act does not time-bar the claim.
Court orders
#- 1.The Notice of Preliminary Objection dated 24th May 2024 is dismissed with costs to the Petitioner
- 2.Mention before the Judge on 6th November 2024 for directions on the disposal of the Petition
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2024] KEELRC 2599 (KLR)", Case Analysis (2024). Not stated in excerpt (Petition dated 19th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2599/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.