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ELRCDismissedNot stated in excerpt (Petition dated 19th March 2024)· [2024] KEELRC 2599 (KLR)

Koinange v County Government of Busia & another (Constitutional Petition E001 of 2024) [2024] KEELRC 2599 (KLR)

Employment and Labour Relations Court
24 October 2024
3,234 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, a clinical officer transferred from Busia County Government to Bungoma County Government, filed a petition on 19th March 2024 complaining that his IPPD information and personal file were not transferred to his new employer, resulting in stoppage of his salary and non-allocation of duties. He sought declarations that these failures violated Article 41 of the Constitution, orders of mandamus compelling handover of his file, placement on the payroll, payment of salary arrears from June 2018 to December 2019 and from June 2022, and alternative compensation. The 1st Respondent, Busia County Government, filed a Notice of Preliminary Objection on three grounds: failure to exhaust remedies under section 77 of the County Governments Act; limitation under section 90 of the Employment Act; and failure to meet the Anarita Karimi Njeru constitutional pleading threshold. The Court, per Jemimah Keli, Judge, dismissed all three grounds. It held that the petition raised constitutional issues affecting two counties which only the Court could determine, following Abdikadir Suleiman v County Government of Isiolo and Mohamed Ali Baadi, so the PSC forum under section 77 was unsuitable. On limitation, applying The German School Society v Ohany and Indian authority on continuing wrongs, it found the ongoing stoppage of salary and duties while the Petitioner remained in service amounted to continuing injury, so the claim was not time barred. Finally, the petition was found to plead the complaints, infringed provisions and manner of infringement with sufficient precision. The objection was dismissed with costs to the Petitioner, and mention set for 6th November 2024 for directions.

Key legal issues

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01

Exhaustion of remedies under section 77 of the County Governments Act

Holding

The objection fails; the petition raises constitutional questions that only the Court can determine, so the PSC forum is not suitable.

Reasoning

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.

p. 5
02

Limitation under section 90 of the Employment Act

Holding

The claims are not time barred as they constitute continuing injury.

Reasoning

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.

p. 6
03

Anarita Karimi Njeru constitutional pleading threshold

Holding

The petition meets the threshold on a prima facie basis.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 24th May 2024 is dismissed with costs to the Petitioner
  2. 2.Mention before the Judge on 6th November 2024 for directions on the disposal of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 234(2)(i)
  • Constitution of Kenya, 2010Article 47
  • County Governments Actsection 77
  • County Governments Actsection 59
  • Employment Actsection 90 (now section 89 under Rev. Ed 2024)
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • County Public Service Human Resource Manual 2013B.23(1)
  • Civil Procedure RulesOrder 53

Cases cited (13)

  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
    (1969) EA 696
  • Owners of Motor Vessel Lilian 'S' v Caltex Oil (Kenya) Ltd
    (1989)
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • James Tinai Murete & Others v County Government of Kajiado and others
  • Martin Kabubii Mwangi v County Government of Laikipia
    (2019) eKLR
  • Achuti & 27 others v County Government of Nakuru & another
    (2023)
  • Abdikadir Suleiman V County Government of Isiolo & Another
    (2015) eKLR
  • Mohamed Ali Baadi & Others v Attorney General & 11 others
    (2012)
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    (2018) eKLR
  • The German School Society & another v Ohany & another
    [2023] KECA 894 (KLR)
  • Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan
    AIR 1959 SC 798
  • M. R. Gupta v Union of India
    (1995) (5) SCC 628
  • Anarita Karimi Njeru v Republic
    (9976-1980) KLR 1272
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction)

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, "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.