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ELRCDismissedNot stated in the judgment (Statement of Claim dated 13th January 2025)· [2025] KEELRC 2720 (KLR)

Tisia v County Secretary –Head of County Public Service of Uasin Gishu & 3 others (Cause E002 of 2025) [2025] KEELRC 2720 (KLR)

Employment and Labour Relations Court
3 October 2025
MOM. Onyango
1,223 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an underpaid county employee can sue directly, since there was no internal decision to appeal first.

What this practically means

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Executive summary

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The Respondents filed a preliminary objection dated 20th February 2025 contending that the Employment and Labour Relations Court lacked jurisdiction over the Claimant's claim for underpayment of wages (Kshs 768,382.50) because, under section 77 of the County Government Act and sections 85, 86 and 87 of the Public Service Commission Act, matters concerning recruitment, remuneration and conditions of service within a County Public Service Board's ambit must first be appealed to the Public Service Commission before resort to court. They sought striking out of the claim with costs. The Claimant opposed, arguing that her suit was not directed at any decision of the County Public Service Board capable of appeal to the Commission, but was a claim for underpayment during employment up to her retirement on 4th May 2024, which under section 90(1) of the Employment Act had to be filed within twelve months of cessation of employment; alternatively, she asked that the claim be stayed rather than dismissed so as not to render it statute-barred. Relying on the classic definition of a preliminary objection in Mukisa Biscuits Manufacturing Ltd v West End Distributors, the court agreed that alternative mechanisms should ordinarily be exhausted first, but found that no decision of the Board existed that was appealable to the Commission. The preliminary objection dated 20th February 2025 was accordingly dismissed with no orders as to costs. The main claim now proceeds to hearing.

Key legal issues

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01

Whether the claim for underpayment of wages was prematurely filed in breach of the exhaustion doctrine under section 77 of the County Government Act and section 87 of the Public Service Commission Act

Holding

The preliminary objection was dismissed; the claim is not an appealable decision but a claim for underpayment, so no internal appeal lay

Reasoning

The court agreed that alternative dispute mechanisms should generally be exhausted before invoking the court's jurisdiction. However, section 77 applies only to appeals against decisions of the County Public Service Board. The dispute here concerned alleged underpayment of wages during employment, culminating in retirement, not a decision of the Board. With no such decision in existence, there was nothing appealable to the Public Service Commission, and the objection failed.

p. 3

Legal principles established

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  • Where no decision has been made by the County Public Service Board that is appealable to the Public Service Commission, the exhaustion requirement under section 77 of the County Government Act is not triggered
  • A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The Preliminary Objection dated 20th February 2025 is dismissed with no orders as to costs

Authorities

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Legislation

  • County Government Act No. 17 of 2012section 77
  • Public Service Commission Actsection 87(2); sections 85 and 86
  • Employment Actsection 90(1)
  • Constitution of KenyaArticles 10 and 232 (as referenced in section 77 of the County Government Act)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Ltd v West End Distributors
    (1969) EA 696
  • Secretary, Sabastian Sunya & 5 others v Busia County Public Service Board & Another
    Bungoma ELRC Petition No. E005 of 2022
  • County Service Board & Another v Hulbhai Gedi Abdille
    (2017) eKLR
  • Sammy Kalundu v AG, Clerk of the Nairobi City County Assembly
    (2022) eKLR
  • James Akelerio alias Muguu & Another v Moses Kasaine Lenonkulal & 3 others
    (2014) eKLR
Jurisdiction invoked
Article 162(2) jurisdiction of the Employment and Labour Relations Court (implied); dispute over exhaustion under section 77 County Government Act and section 87 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, "Tisia v County Secretary –Head of County Public Service of Uasin Gishu & 3 others (Cause E002 of 2025) [2025] KEELRC 2720 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 13th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2720/eng@2025-10-03

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