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ELRCStruck OutNot stated in the judgment (Memorandum of Claim dated 18th July, 2025, filed 8th July, 2025)· [2025] KEELRC 2667 (KLR)

Alumasa v County Government of Vihiga & another (Cause E062 of 2025) [2025] KEELRC 2667 (KLR)

Employment and Labour Relations Court
2 October 2025
2,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Vihiga county employee's unfair termination case was struck out because he never first appealed to the Public Service Commission as the law requires.

What this practically means

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Executive summary

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The claimant sued the respondent alleging unlawful termination of employment, seeking a declaration that the termination was unlawful, malicious and unprocedural, unpaid house allowance, general damages, unpaid salary and interest. The respondent filed a notice of preliminary objection contending that the claim contravened Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act on exhaustion; was statute barred under Section 89 of the Employment Act; disclosed no cause of action; was fatally defective; and ought to have been filed at Kakamega. Neither party filed submissions as directed. Applying the Mukisa Biscuit threshold, the court found the objection raised a pure point of law on jurisdiction. On limitation, the court declined a conclusive finding, noting contradictory dates on the record (an interdiction letter of 4th July 2019, a hand-altered reply to dismissal, and a letter of 15th January 2024 indicating an appeal allowed on 22nd September 2023), under which the claim might not be time barred. On exhaustion, however, the court held that Article 234(2)(i) of the Constitution and Sections 77, 85 and 87(2) of the County Governments Act and Public Service Commission Act mandatorily vest appellate jurisdiction over county public service disciplinary decisions in the Public Service Commission, and that the claimant had neither appealed to nor interacted with the Commission. The suit was therefore premature. The court struck out the Memorandum of Claim and the Notice of Motion of even date, with no orders as to costs.

Key legal issues

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01

Whether the notice of preliminary objection met the Mukisa Biscuit threshold

Holding

The objection met the threshold as it raised a clear point of law on jurisdiction capable of disposing of the suit

Reasoning

Applying the classic formulation in Mukisa Biscuit, the court found the objections grounded on the court's jurisdiction to hear the claim and were clear points of law. A preliminary objection is a threshold issue that must be disposed of at the earliest opportunity owing to its potential to scuttle the suit before full hearing.

p. 2
02

Whether the claim was statute barred under Section 89 of the Employment Act

Holding

The court declined to definitively find the claim time barred; on the claimant's letter of 15th January 2024 the action may not be statute barred

Reasoning

Although Section 89 bars claims filed three years after termination, the record was confused: the interdiction letter was dated 4th July 2019, a reply to dismissal was altered by hand to 2021, and the claimant's letter of 15th January 2024 referenced an appeal allowed on 22nd September 2023. Neither party availed the dismissal letter, so the court could not conclusively determine accrual.

p. 3
03

Whether the claimant exhausted internal dispute resolution mechanisms before filing suit

Holding

The claimant did not appeal to the Public Service Commission; the suit was premature and the preliminary objection succeeded

Reasoning

Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Sections 85 and 87(2) of the Public Service Commission Act vest the PSC with mandatory appellate jurisdiction over county public service disciplinary decisions. The word 'may' in Section 77(1) does not create an opt-out; the mandatory provisions require exhaustion. The claimant demonstrated no appeal to the PSC, so the ELRC's jurisdiction was prematurely invoked.

p. 6

Legal principles established

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  • A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit
  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • A person shall not file legal proceedings in court on county public service matters within the PSC's appellate jurisdiction unless the statutory procedure is exhausted
  • Claims grounded on unfair or unlawful termination of employment accrue on the date of termination and become statute barred three years later under Section 89 of the Employment Act

Court orders

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  1. 1.The claimant's Memorandum of Claim dated 18th July, 2025 filed on 8th July, 2025 and the Notice of Motion of even date are struck out with no orders as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; suit challenged under Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act

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, "Alumasa v County Government of Vihiga & another (Cause E062 of 2025) [2025] KEELRC 2667 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 18th July, 2025, filed 8th July, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2667/eng@2025-10-02

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