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ELRCDismissedNot stated in the judgment (Memorandum of Claim dated 10th July 2024)

Odundo aka Odundo Tobias Samson v County Government of Homa Bay (Cause E072 of 2024) [2025] KEELRC 611 (KLR)

Employment and Labour Relations Court
27 February 2025
NMNzioki Wa Makau
1,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a worker who missed the deadline to use statutory appeal channels can still sue in court for unpaid gratuity.

What this practically means

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Executive summary

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The County Government of Homa Bay raised a preliminary objection dated 22nd November 2024 against the claimant's Memorandum of Claim dated 10th July 2024, contending that the Employment and Labour Relations Court lacked jurisdiction because the claimant had not exhausted the remedies under Article 234(2)(i) of the Constitution, section 87(2) of the Public Service Act and section 77 of the County Governments Act. The respondent, despite directions of 26th November 2024 and numerous opportunities, did not file submissions; the claimant filed submissions dated 20th January 2025, relying on Mukisa Biscuits on the nature of a preliminary objection and Cimbria East Africa on liquidated demands, and arguing that his service gratuity of Kshs. 3,281,040/- was already ascertained by the respondent and that the statutory provisions cited concern review and appeal of County Public Service Board decisions, not enforcement of a liquidated payment. The court, applying the exhaustion doctrine from Geofirey Muthinja v Samuel Muguna Henry, noted that the matters complained of occurred on 2nd February 2023 while the claim was presented on 11th September 2024, so the time to pursue the statutory avenue had lapsed; the claimant therefore approached the court as a last resort. The court found the objection devoid of merit and dismissed it with costs to the claimant, with directions on disposal of the claim to follow. This is a ruling on a preliminary objection only; the substantive claim remains to be heard.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection meets the threshold of a pure point of law
  2. 2.Whether the court lacks jurisdiction for failure to exhaust the remedies under section 77 of the County Governments Act and section 87(2) of the Public Service Act

Key legal issues

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01

Whether failure to exhaust remedies under section 77 of the County Governments Act and section 87(2) of the Public Service Act ousts the court's jurisdiction

Holding

The objection fails because the claimant could no longer pursue the statutory avenue, the time for appeal having lapsed, making the court his only avenue of redress

Reasoning

The court accepted the exhaustion doctrine as articulated in Muthinja but found that the matters complained of occurred on 2nd February 2023 while the claim was presented on 11th September 2024, so the statutory window had closed. The claimant was therefore not merely short-circuiting the process; the prescribed avenue was no longer available to him, and the liquidated gratuity claim was an employment matter properly before the court.

p. 3
02

Whether the notice of preliminary objection is a pure point of law

Holding

The court did not expressly rule on the Mukisa Biscuits threshold, considering instead whether the objection had merit on the exhaustion question

Reasoning

The claimant relied on Mukisa Biscuits to frame the threshold for a preliminary objection, arguing that the claim was a liquidated demand enforceable by the court and that the statutory provisions cited did not apply to enforcement of an ascertained gratuity. The court proceeded to assess the merits of the objection on the exhaustion doctrine without finding the objection bad in form.

p. 1

Legal principles established

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  • Where a statutory dispute resolution mechanism exists, it must be exhausted before invoking the court's jurisdiction, but a claimant who is time-barred from that mechanism approaches the court as a last resort

Court orders

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  1. 1.The preliminary objection dated 22nd November 2024 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Claimant
  3. 3.Directions on disposal of the claim to follow the Ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; objection based on Article 234(2)(i) of the Constitution, section 87(2) of the Public Service Act and section 77 of the County Governments Act

Relief refused

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Respondent's preliminary objection on jurisdiction

The court found the claimant was precluded from pursuing statutory remedies because the time for doing so had lapsed, and the objection lacked merit

p. 3

Costs

Dismissed with costs to the Claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By the time the Claimant approached the Court, time had lapsed for him to seek the reprieve of the avenue prescribed in statute. He therefore approached the Court as a last resort having been frustrated in recovery of the computed gratuity which is an employment matter. I find the objection raised to lack merit and dismiss it with costs to the Claimant.
p. 3Final orders - dismissal of preliminary objection
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call
p. 2Exhaustion doctrine as adopted by the court
Directions on disposal of the claim to follow this Ruling. It is so ordered.
p. 3Disposition

Issues in the judgment

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minor

The judgment cites 'section 87(2) of the Public Service Act' in the objection but the claimant's submissions refer to 'section 87(2) of the Public Service Commission Act' - an inconsistency in the statute named

minor

The case number of the suit is not stated in the judgment, only the date of the Memorandum of Claim

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, "Odundo aka Odundo Tobias Samson v County Government of Homa Bay (Cause E072 of 2024) [2025] KEELRC 611 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 10th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/611/eng@2025-02-27

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