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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 1320 (KLR)

Kenya County Government Workers Union v County Government of Kitui & another (Petition E003 of 2024) [2025] KEELRC 1320 (KLR)

Employment and Labour Relations Court
9 May 2025
BOByram Ongaya
959 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that skipping a required appeal to the Public Service Commission doesn't kill an employment lawsuit—it just means the court may pause it, not dismiss it.

What this practically means

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Executive summary

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The 1st and 2nd respondents filed a Notice of Preliminary Objection dated 11.03.2025 seeking dismissal of the petition on two grounds: first, that the court lacked jurisdiction because the petitioners had not exhausted the dispute resolution procedure under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, 2017, both of which require an aggrieved county government employee to appeal to the Public Service Commission; and second, that the petitioners did not issue a notice of intention to sue under section 13A of the Government Proceedings Act, rendering the suit bad in law. Both parties filed submissions. Byram Ongaya, Principal Judge, accepted that the cited sections prescribe appeal to the Commission in the first instance, but held that filing before exhaustion renders a suit premature rather than stripping the court of jurisdiction. The court further held that alternative dispute resolution mechanisms, finality clauses and ouster clauses cannot bar the court's jurisdiction where the legality or constitutionality of an action, omission or decision is in dispute, as alleged here. The court invoked Rule 56(5) of the ELRC (Procedure) Rules, which provides that want of exhaustion does not bar a suit alleging unconstitutionality or unlawfulness and that such a suit may be stayed and not struck out. The preliminary objection was dismissed with costs in the cause, and directions were ordered for expeditious determination of the petition, with the file to be returned to the Machakos sub-registry.

Key legal issues

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01

Effect of non-exhaustion of the statutory appeal to the Public Service Commission

Holding

Non-exhaustion makes the suit premature and empowers the court to stay, not strike out, the suit; it does not oust the court's jurisdiction, especially where unconstitutionality or unlawfulness is alleged.

Reasoning

The court accepted that Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act prescribe appeal to the Commission in the first instance. However, it held that premature filing affects timing, not jurisdiction. Rule 56(5) of the ELRC (Procedure) Rules expressly provides that want of exhaustion is no bar to a suit alleging unconstitutionality or unlawfulness, and that such a suit may be stayed and not struck out.

p. 4
02

Notice of intention to sue under section 13A of the Government Proceedings Act

Holding

The objection on this ground failed together with the jurisdictional objection; the preliminary objection was dismissed as a whole with costs in the cause.

Reasoning

The 1st respondent asserted the claimants did not issue a notice under section 13A of the Government Proceedings Act, making the suit bad in law. The court, after upholding the petitioners' submission on exhaustion, dismissed the entire preliminary objection and directed parties to take directions for expeditious determination of the petition.

p. 4

Legal principles established

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  • Failure to exhaust a statutory dispute resolution procedure renders a suit premature, not one outside the court's jurisdiction.
  • Ouster clauses and finality provisions do not bar the court's jurisdiction where illegality or unconstitutionality is alleged.

Court orders

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  1. 1.The preliminary objection is dismissed with costs in the cause.
  2. 2.Parties to take directions for expeditious determination of the petition or further appropriate steps in the matter.
  3. 3.The Deputy Registrar to return the Court file to the Machakos Court's sub-registry forthwith.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; exhaustion doctrine under Section 77 County Governments Act and Section 87(2) Public Service Commission Act, 2017; Rule 56(5) ELRC (Procedure) Rules

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, "Kenya County Government Workers Union v County Government of Kitui & another (Petition E003 of 2024) [2025] KEELRC 1320 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1320/eng@2025-05-09

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