Oyoko v Kenya Revenue Authority (Cause E052 of 2025) [2025] KEELRC 2965 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the court has jurisdiction to hear and determine the claimant's suit for unfair termination
Key legal issues
#Whether Section 74(1) of the Public Service Commission Act obliges national government public officers to exhaust the appeal mechanism before filing suit
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
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.
Whether the ELRC has jurisdiction over the unfair termination claim
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
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.
Whether the doctrine of exhaustion required the claimant to first appeal to the Public Service Commission
No; exhaustion applies only where the statute makes the mechanism mandatory, and here the claimant had an option
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.
Legal principles established
#- 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
#- 1.The respondent's Notice of Preliminary Objection dated 19th September, 2025 is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Further, the court finds that it has jurisdiction to hear and determine the instant suit
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
Issues in the judgment
#The judgment repeatedly refers to the respondent (the party objecting) as 'the applicant', apparently the claimant's party label, creating internal inconsistency
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.