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ELRCDismissedCause E001 of 2023 (consolidated; the ruling also applies to a Notice of Preliminary Objection dated 20th January 2025 by the County Solicitor)· [2025] KEELRC 1981 (KLR)

Chirchir & 39 others v West Pokot County Government & 2 others (Employment and Labour Relations Cause E001 & E002 of 2023 (Consolidated)) [2025] KEELRC 1981 (KLR)

Employment and Labour Relations Court of Kenya
3 July 2025
5,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed 40 dismissed West Pokot workers' case to proceed but refused to jail county officials over unpaid salaries.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret (M. Onyango J) determined two interlocutory matters in a consolidated cause brought by 40 former county employees of West Pokot whose employment was terminated by one-month notices dated 3rd January 2023 on grounds of an unsustainable wage bill, and who claimed unpaid salaries from April 2022, discrimination and constitutional violations. First, the court dismissed the Respondents' preliminary objection dated 18th March 2023, which sought striking out of the Statement of Claim on grounds that the Claimants had not exhausted the appeal mechanism under Section 77 of the County Governments Act before the Public Service Commission. The court reviewed the doctrine of exhaustion and its exceptions, noting that on the face of the unrebuted pleadings the PSC may not be the most appropriate forum, that the Claimants had approached the court under threat of imminent termination requiring urgent ex parte relief which the PSC's 2022 County Appeals Procedures Regulations do not accommodate, and that the case fits within the exceptions to the exhaustion doctrine. The decision was also applied to a similar preliminary objection dated 20th January 2025 filed by the County Solicitor. Second, the court dismissed the Claimants' contempt application dated 3rd June 2024 seeking committal of the County Secretary and the Board Secretary to civil jail for breach of orders issued on 15th February 2023, 27th February 2024 and 28th May 2024. Applying the test in Samuel M. N. Mweru v National Land Commission, the court found contempt not proved to the required standard: non-payment of salaries could not be attributed personally to the officeholders given budgetary and appropriation constraints, deployment and allocation of duties were unrebutted, and no evidence showed recruitment was not suspended. Both matters were dismissed with no orders for costs.

Key legal issues

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01

Whether Section 77 of the County Governments Act ousts the Court's jurisdiction for non-exhaustion of remedies before the Public Service Commission

Holding

No - the preliminary objection is dismissed; the case falls within the exceptions to the exhaustion doctrine

Reasoning

The court held that on the face of the pleadings, unrebuted by any response, the Public Service Commission may not be the most appropriate forum for the claim founded on discrimination and constitutional violations. Further, the Claimants approached the court under threat of termination needing urgent ex parte intervention, a relief the PSC's regulations under the Public Service Commission (County Appeals Procedures) Regulations 2022 do not provide for. Applying Fleur Investments, the court found arbitrariness and urgency brought the case within the exceptions to exhaustion.

p. 6
02

Whether the 1st and 2nd Contemnors are in contempt of court orders

Holding

No - the contempt application was not proved to the standard required and is dismissed with no order as to costs

Reasoning

Applying the test in Samuel M. N. Mweru v National Land Commission, the applicant must prove the terms of the order, knowledge, breach and deliberateness. The Contemnors averred compliance except payment of salaries, which they contended was legally impossible without budgetary appropriation. Since contempt may result in denial of liberty, non-payment could not be attributed personally to the officeholders, and no evidence showed recruitment was not suspended nor rebutted deployment of the Claimants.

p. 11

Legal principles established

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  • Where a suit seeks to enforce fundamental rights and the constitutional violations are not mere bootstraps, it is not barred by the doctrine of exhaustion; the court may intervene in exceptional circumstances including where arbitrariness or breach of natural justice is manifest
  • Elements of civil contempt: the applicant must prove the terms of the order, knowledge of the terms by the respondent, and failure to comply; willfulness and bad faith are then inferred but may be rebutted

Court orders

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  1. 1.The Respondents' Preliminary Objection dated 18th March 2023 is dismissed
  2. 2.The decision on the preliminary objection applies equally to the Notice of Preliminary Objection dated 20th January 2025 filed by the County Solicitor, County Government of West Pokot
  3. 3.The Claimants' Notice of Motion dated 3rd June 2024 (contempt application) is dismissed
  4. 4.Both the notice of preliminary objection and the contempt application are dismissed with no orders for costs
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; objection that Section 77 of the County Governments Act ousts the Court's jurisdiction in favour of the Public Service Commission was rejected

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, "Chirchir & 39 others v West Pokot County Government & 2 others (Employment and Labour Relations Cause E001 & E002 of 2023 (Consolidated)) [2025] KEELRC 1981 (KLR)", Case Analysis (2025). Cause E001 of 2023 (consolidated; the ruling also applies to a Notice of Preliminary Objection dated 20th January 2025 by the County Solicitor). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1981/eng@2025-07-03

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