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ELRCDismissedNot stated in the judgment

Oyoko v Kenya Revenue Authority (Cause E052 of 2025) [2025] KEELRC 2965 (KLR)

Employment and Labour Relations Court of Kenya
30 October 2025
2,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant sued for salary in lieu of notice, unpaid June 2024 salary, damages for unfair termination, service pay, house and transport allowance, unremitted NSSF contributions, general damages for breach of contract, costs and interest. The respondent filed a Notice of Preliminary Objection dated 19th September 2025 contending that the proceedings were fatally defective for offending Section 74 of the Public Service Commission Act and Regulation 31 of the Public Service Commission Regulations 2005, and that the claimant had failed to exhaust statutory alternative dispute resolution mechanisms before approaching the court. The respondent relied on exhaustion authorities including Speaker of the National Assembly v Njenga Karume, while the claimant argued that Section 74(1), using the phrase 'may appeal to the Commission', was permissive and not mandatory. The court agreed with the claimant. It held that Article 234(2)(i) of the Constitution confers mandatory appellate jurisdiction on the Public Service Commission only over county government public service, and the Act contains no equivalent mandatory provision for national government public officers. The word 'may' denoted permissiveness, making the aggrieved party the decision-maker on whether to appeal. The exhaustion doctrine was affirmed as sound, but it applies only where the statutory mechanism is obligatory. The court further confirmed its own jurisdiction under Article 162(2)(a) of the Constitution and Section 12 of the ELRC Act, including enforcement of Article 41 labour rights. The preliminary objection was dismissed with no orders as to costs, the court finding it would be unfair to derail a suit filed over four months earlier.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's Notice of Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West Ends Distributors Ltd [1969]
  2. 2.Whether Section 74(1) of the Public Service Commission Act mandatorily requires a public officer to appeal to the Public Service Commission before invoking the court's jurisdiction
  3. 3.Whether the court has jurisdiction to hear and determine the claimant's suit for unfair termination

Key legal issues

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01

Whether Section 74(1) of the Public Service Commission Act obliges national government public officers to exhaust the appeal mechanism before filing suit

Holding

It does not; the provision is permissive ('may appeal') and, unlike Part XV for county government public service, there is no mandatory provision covering national government officers

Reasoning

The court contrasted Section 74(1) with Part XV of the Act and Article 234(2)(i) of the Constitution, which in mandatory terms confers on the Public Service Commission jurisdiction over county government public service appeals. No equivalent provision covers other public officers. The phrase 'may appeal' makes the aggrieved party the decision-maker, so exhaustion is optional. The reasoning in James Tinai Murete on Section 77 of the County Governments Act is inapplicable absent a similar provision.

p. 3
02

Whether the ELRC has jurisdiction over the unfair termination claim

Holding

Yes; the court derives jurisdiction from Article 162(2)(a) of the Constitution and Section 12 of the ELRC Act, and may enforce Article 41 labour rights

Reasoning

Relying on Samuel Kamau Macharia on the sources of jurisdiction and USIU v Attorney General and Daniel N. Mugendi v Kenyatta University, the court confirmed its jurisdiction over employment and labour relations matters and its power to enforce labour rights under Article 41 and interpret incidental fundamental rights.

p. 4
03

Whether the doctrine of exhaustion required the claimant to first appeal to the Public Service Commission

Holding

No; exhaustion applies only where the statute makes the mechanism mandatory, and here the claimant had an option

Reasoning

The court acknowledged the soundness of the exhaustion doctrine as articulated in Speaker of the National Assembly v Karume and related authorities, but held that where the parent statute gives the aggrieved person a choice, an unwilling party cannot be compelled, and it would be unfair to derail a court process four months after filing.

p. 4

Legal principles established

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  • Where the parent statute accords aggrieved persons an option whether or not to invoke internal dispute resolution mechanisms, a party cannot be compelled to exhaust them before resorting to court
  • The word 'may' in a statute ordinarily denotes permissiveness, not obligation
  • A court's jurisdiction flows from the Constitution or legislation or both

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 19th September, 2025 is dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act

Quotable passages

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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 dated 19th September, 2025 is devoid of merit and it is accordingly dismissed with no Orders as to costs
p. 5Disposition - dismissal of the preliminary objection
where the parent statute accords aggrieved and afiected persons the option on whether or not to invoke the internal dispute resolution mechanism, the intention of the legislature is clearly manifest and an unwilling party ought not to be compelled
p. 4Exhaustion doctrine - permissive statutory appeal mechanisms
Further, the court finds that it has jurisdiction to hear and determine the instant suit
p. 5ELRC jurisdiction
the court finds that the applicant has failed to demonstrate that the provisions of Section 74(1) of the Public Service Commission Act obligated the respondent to lodge an appeal with the Public Service Commission before invoking the jurisdiction of this court
p. 4Failure to establish mandatory exhaustion

Issues in the judgment

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minor

The judgment repeatedly refers to the respondent (the party objecting) as 'the applicant', apparently the claimant's party label, creating internal inconsistency

minor

Paragraph 13 frames the first issue as whether the preliminary objection meets the Mukisa Biscuit threshold, but the court never expressly determines it, moving directly to the exhaustion and jurisdiction questions

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, "Oyoko v Kenya Revenue Authority (Cause E052 of 2025) [2025] KEELRC 2965 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2965/eng@2025-10-30

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