Ondari v County Government of Kisii & 3 others (Petition E008 of 2025) [2025] KEELRC 1793 (KLR)
The bottom line
#A Kenyan court struck out a doctor's petition over his suspension because he first had to appeal to the Public Service Commission.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' Notice of Preliminary Objection dated 9th May, 2025 raises a competent preliminary objection
- 2.Whether the Petitioner was required to exhaust the internal/alternative dispute resolution mechanisms (appeal to the Public Service Commission) under Section 77 of the County Governments Act and Sections 85 and 87 of the Public Service Commission Act before filing the Petition
- 3.Whether the phrase 'may appeal' in Section 77(1) of the County Governments Act and Section 86(1) of the Public Service Commission Act renders the appeal to the PSC optional
- 4.Whether exceptional circumstances existed to exempt the Petitioner from the doctrine of exhaustion under Section 9(4) of the Fair Administrative Action Act
Key legal issues
#Whether the Notice of Preliminary Objection was competent
It was competent, meeting the Mukisa Biscuit threshold as restated in Hassan Nyanje Charo v Khatib Mwashetani
The court applied the locus classicus definition of a preliminary objection from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, as restated by the Supreme Court in Hassan Nyanje Charo v Khatib Mwashetani. The objection raised a pure point of law (jurisdiction/prematurity due to non-exhaustion) and the Petitioner did not contend otherwise, only arguing the breaches were constitutional.
Whether the doctrine of exhaustion applied and barred the Petition
Yes - the Petitioner had an appealable decision (suspension) and should have appealed to the Public Service Commission before invoking the court's jurisdiction
The court held that the PSC's power to hear appeals from County Government public service is a constitutional imperative under Article 234(2)(i), reinforced by Section 77 of the County Governments Act and Sections 85, 86 and 87(2) of the PSC Act. The word 'may' did not render the appeal optional, since Section 77(2) and Section 85 use mandatory 'shall' language. The suspension, whether administrative or a penalty, was within the PSC's jurisdiction and ought not to have been magnified into a constitutional issue. No exceptional circumstances were articulated and no Section 9(4) FAAA exemption application was made.
Whether exceptional circumstances justified exemption from exhaustion
No - exceptional circumstances were not articulated, and no application for exemption under Section 9(4) of the Fair Administrative Action Act was before the court
The court accepted that the doctrine of exhaustion is not absolute and can be excepted, drawing on the NASA case and Republic v Dedan Kimathi University of Technology. However, exceptions are not clearly delineated and require extensive analysis of facts, regulatory scheme and interests. The Petitioner merely alleged constitutional breaches without demonstrating that the PSC mechanism would be ineffective or futile, and Section 9(4) requires an application for exemption, of which there was none.
Legal principles established
#- Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked; the 'may appeal' language in Section 77(1) of the County Governments Act and Section 86(1) of the PSC Act does not make appeal to the Public Service Commission optional, because the PSC's appellate jurisdiction over County Government public service is a constitutional imperative under Article 234(2)(i)
- An exemption from the doctrine of exhaustion under Section 9(4) of the Fair Administrative Action Act can only be granted on application by the applicant
- Where the later statute (Public Service Commission Act) conflicts with the earlier County Governments Act, the later statute prevails, both having been enacted with awareness of Article 234(2)(i) of the Constitution
Court orders
#- 1.The respondents' Notice of Preliminary Objection dated 9th May, 2025 is allowed
- 2.The Petitioner/Applicant's Petition and Notice of Motion both dated 23rd April, 2025 are struck out with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution read with Section 87(2) of the Public Service Commission Act and Section 77 of the County Governments Act (exhaustion issue)
Relief refused
#The reliefs sought in the Petition and Notice of Motion dated 23rd April, 2025 (interim and substantive reliefs remedying the suspension)
Suit instituted prematurely without exhausting the statutory dispute resolution mechanism before the Public Service Commission; no application for exemption under Section 9(4) of the Fair Administrative Action Act was before the court
Costs
No orders as to costs - the Petition and Notice of Motion were struck out 'with no orders as to costs'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot the respondent's Notice of Preliminary Objection is allowed and the Petitioner/ Applicant's Petition and Notice of Motion both dated 23rd April, 2025 are struck out with no orders as to costs.
It is inconceivable that the Constitution of Kenya would establish an alternative dispute resolution for public oficers and command courts and tribunals to promote it among others, and simultaneously intend it to be optional.
The instant Petition and Notice of Motion are inconsistent with the principle of exhaustion of internal disputes resolution mechanisms. The court's jurisdiction was invoked before internal dispute resolution process were exhausted.
The rights alleged to have been violated are remediable under the existing alternative dispute resolution mechanisms and if the Petitioner/Applicant is dissatisfied, the court has jurisdiction to hear and determine the suit a fresh.
Irrespective of whether the suspension is administrative or a penalty, it is a matter within the jurisdiction of the Public Service Commission and ought not, in the court's view, to have been magnified to a constitutional issue.
the provisions of Section 9(4) of the Fair Administrative Action Act are clear that an exemption can only be granted on application by the applicant and there is none before this court for the respondents to respond to and the court to make a determination.
Issues in the judgment
#Conflicting dates for the suspension/notice to show cause: the Petition was triggered by a suspension letter dated 18th February, 2025, yet the analysis describes a notice to show cause dated 5th/6th February, 2025 and Petitioner's response letters of 18th February, 2025; the sequence of correspondence is not internally reconciled
Date inconsistency in the Notice of Motion: paragraph 32 refers to 'Notice of Motion dated 23rd April 2023' whereas throughout the judgment the Motion is dated 23rd April, 2025
Paragraph numbering is irregular: the sequence runs ...66, 67, 68, then '60.' twice before 70, and citation appears as 'Kutner V Phillips [1891] 2 QB2 267' with an unusual citation format
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondari v County Government of Kisii & 3 others (Petition E008 of 2025) [2025] KEELRC 1793 (KLR)", Case Analysis (2025). Petition and Notice of Motion dated 23rd April, 2025 (ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1793/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.