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ELRCStruck OutPetition No E004 of 2024· [2025] KEELRC 3698 (KLR)

Omondi & 16 others v County Government of Nakuru & another (Petition E004 of 2024) [2025] KEELRC 3698 (KLR)

Employment and Labour Relations Court
19 December 2025
1,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out a petition by 17 former Nakuru county workers because they had to appeal to the Public Service Commission first.

What this practically means

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Executive summary

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Seventeen former county public service employees (garden assistants, communication officers, statisticians, cooks, drivers, cleaners and security wardens) petitioned the Employment and Labour Relations Court at Nakuru, alleging that their contracts were terminated with effect from 11th October 2022 following the election of a new County Governor. They sought declarations that the terminations were unfair under the Employment Act and the Fair Administrative Action Act, and violated constitutional rights, together with statutory and constitutional remedies including notice pay, leave pay, salary arrears, gratuity, compensation for unfair termination, general and aggravated damages, and certificates of service. The Respondents raised a preliminary objection dated 8th March 2024 contending that the Petition offended Article 234(2) of the Constitution, Section 77 of the County Governments Act, Sections 87(2) of the Public Service Commission Act and the PSC [County Appeals Procedures] Regulations, 2022, and that the Petitioners had not exhausted statutory dispute resolution mechanisms. The Petitioners in turn applied for a stay of proceedings to enable them to appeal to the PSC. The Court, per James Rika, J, held that Section 87(2) of the PSC Act deprives Courts of primary jurisdiction over matters appealable to the PSC, and that it is purposeless to stay proceedings filed without jurisdiction. It found Rule 56(5)(c) of the E&LRC (Procedure) Rules, 2024 inconsistent with Section 87(2). The preliminary objection was sustained, the Petition struck out, the stay application declined, and no order was made on costs.

Key legal issues

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01

Whether the Court has primary jurisdiction over a Petition challenging termination of county public officers where the PSC appeal mechanism was not exhausted

Holding

The Court lacks primary jurisdiction; the Petitioners must first appeal to the PSC under Section 77 of the County Governments Act and Sections 85-89 of the PSC Act

Reasoning

Section 77 of the County Governments Act gives dissatisfied county public officers a right of appeal to the PSC, with review under Section 77(5). Sections 85-89 of the PSC Act confer appellate and review jurisdiction on the PSC, and Section 87(2) expressly bars filing of court proceedings before exhaustion. The Court's role is limited to enforcement of PSC decisions under Section 89.

p. 3
02

Whether proceedings filed contrary to Section 87(2) can be stayed rather than struck out

Holding

No - a stay cannot issue where the Court never had jurisdiction, and Rule 56(5)(c) of the E&LRC Procedure Rules, 2024 is inconsistent with Section 87(2)

Reasoning

The Court reasoned that proceedings initiated contrary to a statutory prohibition confer no jurisdiction, and a stay order presupposes jurisdiction. The Rule permitting stay for non-exhaustion was characterised as an innovation attempting to broaden jurisdiction and sidestep substantive law.

p. 4

Legal principles established

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  • Where Section 87(2) of the Public Service Commission Act prohibits filing of court proceedings before exhaustion of the PSC appeal procedure, the Court has no primary jurisdiction and cannot stay such proceedings
  • Rule 56(5)(c) of the E&LRC (Procedure) Rules, 2024, permitting stay rather than striking out for non-exhaustion, is inconsistent with Section 87(2) of the Public Service Commission Act

Court orders

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  1. 1.The application by the Petitioners for stay of the proceedings is declined
  2. 2.The preliminary objection is sustained and the Petition is struck out
  3. 3.The Petitioners shall pursue their appeal at the Public Service Commission, and may return to this Court for enforcement of the decision of the Public Service Commission
  4. 4.No order on the costs

Authorities

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Legislation

  • Constitution of KenyaArticles 162(2)(a), 234(2)(i), 10, 232
  • County Governments ActSections 77(1), 77(5)
  • Public Service Commission ActSections 85, 87(2), 88, 89(1)
  • Public Service Commission [County Appeals Procedure] Regulations, Legal Notice No. 92 of 2022Rule 9
  • Employment & Labour Relations Court [Procedure] Rules, 2024Rules 56(5)(c), 68(5)
  • Employment & Labour Relations Court Rules, 2025Rule 69(1)
  • Fair Administrative Action ActNot specified
  • Employment ActNot specified

Cases cited (6)

  • Mohammed v. County Secretary, Nakuru & 3 Others; Kiprono [Interested Party]
    [2025] KEELRC 2535 [KLR]
  • Republic v. Kakamega County Assembly Service Board; Simwa & Another [Ex-Parte Applicants]; Akosi [Interested Party]
    [2023] KEELRC 513 [KLR]
  • Oliver Mukhebi & 28 Others v. County Public Service Board of Bungoma & Another
    [2022] e-KLR
  • Maina v. County Government of Nakuru
    [2024] KEELRC 503 [KLR]
  • Ojieyo & 5 Others v. County Government of Homabay & 3 Others
    [2023] KEELRC 1832 [KLR]
  • Secretary Wajir County Public Service Board v. Hulbai Gedi Abdille
    [2017] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2)(a) of the Constitution, contested via Section 87(2) of the Public Service Commission Act and Section 77 of the County Governments 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, "Omondi & 16 others v County Government of Nakuru & another (Petition E004 of 2024) [2025] KEELRC 3698 (KLR)", Case Analysis (2025). Petition No E004 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3698/eng@2025-12-19

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