Olago & another v Homabay County Assembly Service Board & 3 others (Miscellaneous Case E051 of 2025) [2025] KEELRC 2623 (KLR)
The bottom line
#Kenya's Employment Court confirmed it will enforce Public Service Commission reinstatement decisions against county governments — but won't personally sanction defiant officials.
What this practically means
#Executive summary
#Key legal issues
#Whether the PSC has jurisdiction to hear appeals from County Assembly Service Board decisions
The PSC has jurisdiction; Article 234(1)(i), Section 77 of the County Governments Act and Section 86 of the PSC Act cover all County Government public service employees and decision-makers, and the County Assembly Service Board is a 'person' under Article 260
Article 234(1)(i) empowers the Commission to hear and determine appeals in respect of County Governments' public services. Section 77 of the County Governments Act applies to all county employees and disciplinary decisions. The County Assembly Service Board is a body corporate and thus a 'person' under Article 260. The PSC Act, enacted later, prevails in case of conflict.
Whether the PSC decision should be adopted as a judgment of the ELRC
Yes; Section 89(1) of the PSC Act confers jurisdiction on the ELRC to adopt PSC decisions for enforcement, since the Commission has no enforcement mechanism
The PSC has no enforcement mechanism; adoption by the ELRC ensures certainty and predictability. The respondents admitted they were yet to implement the decision and had not sought review under Section 88 of the PSC Act. The decision dated 14th May 2025 was therefore properly adoptable as a judgment of the court.
Whether the court can order removal of officers under Section 89(2) of the PSC Act
No; the court has no jurisdiction to enforce Section 89(2), and no person may be removed from office without due process
Prayer 4 sought declarations that named officers were liable to removal from office for failing to implement the PSC decision. The court held it lacked jurisdiction to enforce Section 89(2) of the PSC Act and that dismissal or removal of a public officer without due process is constitutionally prohibited. That prayer was dismissed.
Whether Lilian Ogono had locus standi to swear on behalf of the County Assembly Service Board
Yes; as a member of the County Assembly Service she could plead and swear on its behalf if the Board so resolved, and the applicants never requested the resolution
The applicants did not request the authority or file a notice to produce to enable the respondents avail the Board's resolution under Section 17 of the County Assembly Services Act. Nothing turned on the issue. The court also declined to rule on the alleged jurisdictional authorities cited by the deponent since none were named or produced.
Legal principles established
#- The Public Service Commission has jurisdiction to hear and determine appeals against decisions made in respect of the entire complement of County Governments' Public Service, including the County Assembly Service Board
- Section 89(1) of the Public Service Commission Act confers jurisdiction on the ELRC to adopt decisions of the PSC as its own for purposes of enforcement, and the court may not question the merits of a reinstatement decision of the PSC
- Court orders of reinstatement are not subject to prior creation of new offices; the respondents were at fault for filling the applicants' positions while the appeal was pending
- Unpaid salary and benefits of a reinstated employee accumulate and are due and payable under Section 17(1) of the Employment Act
Court orders
#- 1.The decisions of the Interested Party dated 14th May 2025, communicated vide letters dated 16th May 2025 and email dated 20th May 2025, be and are hereby adopted as Judgments of this court by dint of Section 89(1) of the Public Service Commission Act for purposes of enforcement
- 2.Applicants awarded 50% costs of the instant application against the respondents
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Section 89(1) of the Public Service Commission Act; Article 162(2)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olago & another v Homabay County Assembly Service Board & 3 others (Miscellaneous Case E051 of 2025) [2025] KEELRC 2623 (KLR)", Case Analysis (2025). ELRC Misc. Application (Notice of Motion dated 2nd July 2025), Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2623/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.