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ELRCDismissedCause No. E008 of 2026

Saul Mogaka Onsare v County Government of Nyamira & another (Consolidated with Samwel Moseti Barongo v County Government of Nyamira & another)

Employment & Labour Relations Court of Kenya at Kisii
28 September 2026
1,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled that two Nyamira county employees could sue after the Public Service Commission dismissed their appeals without deciding them, and dismissed the county's objection with costs.

What this practically means

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Executive summary

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The Claimants, consolidated in two causes, sued the County Government of Nyamira and the Nyamira County Public Service Board for unpaid salary and unfair labour practices. The Respondents filed a preliminary objection contending that the suits were defective and an abuse of process: first, that grievances involving county employees must first be presented to the Public Service Commission under Article 234(2)(i) of the Constitution, section 77 of the County Governments Act and sections 85, 86 and 87(2) of the Public Service Commission Act, and that the PSC had already struck out the Claimants' appeals (PSC County Appeal No. 143 of 2025) which remained unassailed; second, that the claims should have been filed in the Magistrates' Court at Nyamira under sections 11, 14 and 15 of the Civil Procedure Act and sections 7 and 9 of the Magistrates' Courts Act, given the Gazette Notice conferring employment jurisdiction on magistrates' courts for salaries below Kshs. 80,000/-. The Claimants countered that the objection raised factual matters, that they had exhausted the statutory mechanism since the PSC struck out their appeals for being out of time without a merits decision, that review under section 88 was unavailable to them, and that their salary of Kshs. 159,630/- placed the claim within the ELRC's jurisdiction. Applying Mukisa Biscuit, the court held the exhaustion doctrine was a point of law but that the Claimants, having taken their grievances to the PSC which perfunctorily dismissed them without a merits decision, had exhausted that mechanism and need not seek review or appeal. The pecuniary jurisdiction objection was misplaced given the salary level. The preliminary objection was dismissed with costs to the Claimants.

Questions the Court framed

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

  1. 1.Whether the claim is admissible before this Court in light of the Public Service Commission's decision striking out the Claimant's appeal raising the same grievances
  2. 2.Whether the claim is admissible before this Court considering the mandatory provisions of sections 11, 14 and 15 of the Civil Procedure Act read together with sections 7 and 9 of the Magistrates' Courts Act (pecuniary and territorial jurisdiction)

Key legal issues

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01

Whether the preliminary objection on exhaustion of the statutory dispute-resolution mechanism was well founded

Holding

The objection failed: the Claimants had already taken the grievance to the PSC, which struck out the claims without a merits decision, so they had exhausted the mechanism and were not obliged to seek review or appeal.

Reasoning

Section 77 of the County Governments Act and sections 85, 86 and 87(2) of the Public Service Commission Act require county employment grievances to go to the PSC first. The Claimants did so, and the PSC's striking out was a perfunctory dismissal, not a decision on the merits. Section 88 review requires fresh material facts or error on the face of the record, which was not available, so the Claimants' recourse was this Court.

p. 10
02

Whether the claim ought to have been filed in the Magistrates' Court at Nyamira on pecuniary and territorial grounds

Holding

The pecuniary jurisdiction objection was misplaced and was disposed of in favour of the Claimants.

Reasoning

The Claimants' monthly salary was Kshs. 159,630/-, above the Kshs. 80,000/- threshold in Gazette Notice No. 6024 of 22nd June 2018 conferring employment jurisdiction on magistrates' courts. The court noted that ascertaining salary would require scrutiny of payslips, a factual inquiry, but on the pleaded figures the claim fell within the ELRC's jurisdiction.

p. 11
03

Whether the objection qualified as a proper preliminary objection raising pure points of law

Holding

The court applied the Mukisa Biscuit test; the exhaustion limb was a point of law and well taken for consideration, while the salary limb involved facts.

Reasoning

Relying on Spry VP and Sir Charles Newbold JA in Mukisa Biscuit, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The exhaustion doctrine qualified as an issue of law; the salary level was a mixed question of law and fact requiring scrutiny of payslips.

p. 9

Legal principles established

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  • Where the PSC has struck out a grievance without a decision on the merits, the claimant has exhausted the statutory mechanism and may approach the ELRC without seeking review or appeal of the PSC's decision.
  • The exhaustion doctrine is a pure point of law that may properly be raised as a preliminary objection, whereas pecuniary jurisdiction based on salary level is a mixed question of law and fact.

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the Claimants

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, Article 162(2) jurisdiction over employment and labour relations disputes
Consolidated with
Cause No. E008 of 2026 (Samwel Moseti Barongo v County Government of Nyamira & another)

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 my considered view, the objection as to pecuniary jurisdiction is misplaced and therefore one that is disposed of in favour of the Claimants.
p. 11Pecuniary jurisdiction objection rejected
As such, the preliminary objection taken is dismissed with costs to the Claimants.
p. 11Final orders - dismissal of preliminary objection
The Claimants did not need to further review or seek to appeal the perfunctory dismissal of the claims by the Public Service Commission as there is no decision on the merits made.
p. 10Exhaustion doctrine - no merits decision by PSC
A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
p. 9Definition of preliminary objection (Newbold JA, cited)

Issues in the judgment

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material

Court states the exhaustion objection 'is well taken' but later dismisses the whole preliminary objection in the Claimants' favour without reconciling the two positions.

minor

Consolidated claimant named 'Samwel Moseti Barongo' in the title but the PSC appeal is cited as 'Samwel Mogaka Onsare'.

minor

Both PSC appeals bear the same number, 143 of 2025, for two different claimants.

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, "Saul Mogaka Onsare v County Government of Nyamira & another (Consolidated with Samwel Moseti Barongo v County Government of Nyamira & another)", Case Analysis (2026). Cause No. E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2589/eng@2026-09-28

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