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ELRCDismissedNot stated in judgment (Petition filed in the Employment and Labour Relations Court)· [2025] KEELRC 1098 (KLR)

Omondi v Ochola & 5 others; County Public Service Boards' National Consultative Forum & another (Interested Parties) (Petition E003 of 2025) [2025] KEELRC 1098 (KLR)

Employment and Labour Relations Court
3 April 2025
NMNzioki Wa Makau
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court dismissed a bid to remove Migori County Public Service Board members, ruling only the High Court can handle such removals.

What this practically means

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Executive summary

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The Petitioner, a resident of Migori suing in the public interest, petitioned the Employment and Labour Relations Court seeking declarations, an order of certiorari and an order of prohibition against the 1st to 6th Respondents, members of the Migori County Public Service Board. He alleged they had unlawfully assumed office - the selection panel allegedly flouted a subsisting court order, nominees were not vetted by the County Assembly, and the oath of office was not taken - and were usurping the Board's statutory functions under the County Governments Act by creating offices, declaring vacancies, and suspending, terminating, redesignating and disciplining county public officers. He invoked Articles 3(1) and 258(2)(c) of the Constitution and section 5(2) of the Fair Administrative Actions Act. The Respondents and the 2nd Interested Party maintained they were lawfully in office and challenged the Court's jurisdiction, relying on the Court of Appeal's decision in Governor, County Government of Kakamega & 4 others v Omweno & 12 others that removal of County Public Service Board members is guided by Article 251(1) of the Constitution and is a matter for the High Court. The Court held that a jurisdictional challenge may be raised at any time before final judgment, and, following Omweno, found itself devoid of jurisdiction because the orders sought would, by their reading and implication, result in the removal of the Board's members. It noted the Petitioner should have impleaded the Board as the principal party but dismissed the petition, declining to issue any orders, and, as the petition was in the public interest, ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over removal of County Public Service Board members

Holding

The Court held it lacks jurisdiction because the orders sought would effect the removal of Board members, a matter for the High Court under Article 251(1) of the Constitution

Reasoning

Relying on the recent Court of Appeal decision in Governor, County Government of Kakamega & 4 others v Omweno & 12 others, the Court found that the impugned orders, by their reading and implication, would result in removal of the members of the Migori County Public Service Board. It noted that jurisdiction is being settled and evolving and found no room to distinguish the decision. A jurisdictional challenge could properly be raised in submissions before final judgment despite a prior ruling.

p. 6
02

Timeliness of a jurisdictional challenge

Holding

A challenge to jurisdiction may be raised at any time before final judgment, even after a prior ruling on the viability of the petition

Reasoning

The Respondents and 2nd Interested Party raised jurisdiction in submissions despite the Court's earlier ruling on the viability of the Petition. The Court held they were within their rights to do so, applying the principle that jurisdiction is everything and can be challenged at any time before final judgment.

p. 5
03

Improper joinder/partitioning of parties

Holding

The Petitioner should have impleaded the Migori County Public Service Board as the principal party with the individual members as Interested Parties, though the Court did not rest its decision on this alone

Reasoning

The Court observed that the Petition included the Board as an interested party yet the ensuing orders would materially affect it; the Board should have been the principal respondent. This misjoinder was noted but the dismissal rested on want of jurisdiction.

p. 5

Legal principles established

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  • A challenge to jurisdiction can be made at any time before final judgment is given
  • Without jurisdiction a court has no authority to take any step
  • The Employment and Labour Relations Court lacks jurisdiction over the removal of the Chairperson and Members of a County Public Service Board, a process guided by Article 251(1) of the Constitution

Court orders

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  1. 1.The Petition is dismissed
  2. 2.The Court declines the invitation to issue any of the orders proposed by the Petitioner
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution; jurisdiction challenged under Article 251(1) as applied by the Court of Appeal in Governor, County Government of Kakamega & 4 others v Omweno & 12 others [2025] KECA 190 (KLR)

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, "Omondi v Ochola & 5 others; County Public Service Boards' National Consultative Forum & another (Interested Parties) (Petition E003 of 2025) [2025] KEELRC 1098 (KLR)", Case Analysis (2025). Not stated in judgment (Petition filed in the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1098/eng@2025-04-03

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