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ELRCStruck OutELRC Petition No. E012 of 2026· [2026] KEELRC 2498 (KLR)

Jeniffer Kaleli v Makueni County Public Service Board & Dr. Justine Kyambi

Employment and Labour Relations Court of Kenya
18 September 2026
JKJemimah Keli
2,269 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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The Employment Court struck out a Makueni County recruitment challenge because the petitioner should have first appealed to the Public Service Commission.

What this practically means

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Executive summary

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The petitioner, an employee of the Makueni County Public Service Board acting as Director of Human Resource Management and Development, petitioned the ELRC at Machakos challenging the Board's competitive recruitment for the Director position on 6th May 2026 as irregular, unconstitutional and unfair, and complained of disciplinary proceedings initiated by the second respondent. She sought quashing of the recruitment, a declaration that the disciplinary proceedings violated Article 41, and an order for a fresh recruitment process, together with interim restraints on any appointment. The respondents filed a preliminary objection contending, among other grounds, that the pleadings were defective and the suit an abuse of process. The court, however, decided the matter on jurisdiction and exhaustion. Applying the Supreme Court's decision in Moi Teaching and Referral Hospital v Gikenyi, it noted that while the ELRC generally has jurisdiction over pre-employment disputes, it must decline jurisdiction where a statutory mechanism exists and has not been exhausted. Section 77 of the County Government Act and section 85 of the Public Service Commission Act provide an appellate route to the Public Service Commission covering recruitment, selection and appointment decisions in county governments. Following Karume, Wajir Wasco and Hulbhai Gedi Abdille, the court held that the statutory procedure must be strictly followed and that accepting the petition would amount to constitutional avoidance. The preliminary objection was upheld, the petition and notice of motion were struck out for prematurity and want of exhaustion, each party was ordered to bear its own costs, and the file was closed. An oral request for a stay was refused as a negative order.

Key legal issues

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01

Whether the ELRC has first-instance jurisdiction over a challenge to a county public service board recruitment process

Holding

The court lacks first-instance jurisdiction; the dispute must go to the Public Service Commission under section 85 of the Public Service Commission Act and section 77 of the County Government Act

Reasoning

The Supreme Court in Moi Teaching and Referral Hospital confined ELRC jurisdiction to existing employer-employee disputes, with exceptions for public-interest pre-employment disputes and where no statutory mechanism exists. Section 77 of the County Government Act and section 85 of the Public Service Commission Act provide an appellate mechanism to the PSC covering recruitment, selection and appointment. Following Karume, that statutory procedure must be strictly followed; accepting the petition would be constitutional avoidance.

p. 6
02

Whether the petitioner's constitutional petition could bypass the statutory appeal mechanism as a matter of choice of forum

Holding

No; the choice-of-avenue submission was misplaced

Reasoning

Relying on Speaker of the National Assembly v Karume and Wajir Wasco, the court held that not every dispute should be brought as a constitutional question; where a clear statutory redress procedure exists it must be strictly followed. The germane dispute could be resolved under the statutes, so the petition could not circumvent the PSC appellate route.

p. 6

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • The ELRC has jurisdiction over pre-employment disputes only in public-interest cases or where no statutory mechanism exists; otherwise exhaustion is required

Court orders

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  1. 1.The Notice of preliminary objection by the respondent dated 29th June 2026 is upheld
  2. 2.The petition dated 9th June 2026 and amended on 22nd July 2026, and the application thereunder, struck out for being filed prematurely and for want of exhaustion of statutory dispute resolution mechanisms
  3. 3.Each party to bear their own costs
  4. 4.The file is marked as closed
  5. 5.Request for a stay denied as a negative order

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 27, 41, 47, 232, 234(2)(i)
  • County Government ActSections 65, 66, 77
  • Public Service Commission ActSections 85, 86, 87

Cases cited (6)

  • Gikenyi B & 6 Others v Council of Governors and 68 Others
    Petition No. E001 of 2026 (High Court, Nakuru)

    Counsel lacking mandate to represent county assembly renders suit defective

  • Moi Teaching and Referral Hospital with 3 others v Dr Magare Gikenyi and others
    Supreme Court Case No. E030 and E.033 of 2025

    ELRC jurisdiction over pre-employment disputes and its exceptions (public interest; statutory mechanism exhaustion)

  • Speaker of the National Assembly v Karume
    [1992] KECA 42 (KLR)

    Clear constitutional or statutory redress procedure must be strictly followed

  • Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others
    [2024] KECA 937 (KLR)

    Not every dispute should be brought as a constitutional question

  • Secretary County Public Service Board & another v Hulbhai Gedi Abdille
    [2016] eKLR

    PSC has primary, unfettered jurisdiction over county board decisions; statutory appellate process should not be bypassed

  • Republic v National Environment Management Authority (supra)

    Exceptional circumstances required to bypass statutory appellate process

Jurisdiction invoked
Articles 10, 27, 41, 47 & 232 of the Constitution of Kenya 2010; Articles 65 & 66 of the County Government 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, "Jeniffer Kaleli v Makueni County Public Service Board & Dr. Justine Kyambi", Case Analysis (2026). ELRC Petition No. E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2498/eng@2026-09-18

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