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ELRCDismissedELRC Cause No. E046 of 2025· [2026] KEELRC 2608 (KLR)

Robert Kioko Mwanzia v County Government of Kiamba & Thika Level 5 Hospital

Employment & Labour Relations Court
25 September 2026
HWHellen Wasilwa
2,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that county employees can still sue in court for unfair termination because the Public Service Commission cannot award the remedies they need.

What this practically means

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Executive summary

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The respondents filed a preliminary objection dated 30th December 2025 seeking dismissal of the claim in limine on grounds that the claimant, an employee in the county public service, filed suit prematurely without first appealing to the Public Service Commission under section 86 of the Public Service Commission Act, and that Article 159(2)(c) of the Constitution required resort to alternative dispute resolution. The respondents relied on Lillian S, Macharia and Karume, and on sections 77(3), 86 and 87(2) of the PSC Act, arguing that a complete statutory appellate mechanism deprived the Court of jurisdiction until exhausted. The claimant countered, citing Mukisa Biscuit, Oraro v Mbaja and Nitin Properties, that the objection was not a pure point of law, since whether the PSC framework applied depended on contested facts about the appointing authority, the contracts and payroll. He argued the claim embraced unfair termination, unfair labour practices, short-term contracts, salary irregularities and violation of Article 41, remedies the PSC could not grant, relying on Ramogi and Gichuki. The court held that although section 86 provides an appeal route to the PSC, the PSC lacks mandate to grant constitutional remedies or compensation for unfair termination as sought, and the issues were grievous and determinable only upon evidence. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the PSC appellate framework under section 86 of the PSC Act ousts this Court's jurisdiction

Holding

The objection fails because the PSC cannot grant the constitutional and statutory remedies sought; the dispute requires evidence and cannot be resolved as a preliminary point of law

Reasoning

The court accepted that section 86 of the PSC Act provides an appeal route to the PSC from County Public Service Board decisions. However, it found the PSC has no mandate to award constitutional remedies or compensation for unfair termination. Since the claim seeks such remedies and the issues are grievous and evidence-dependent, the objection could not dispose of the claim and was dismissed.

p. 12
02

Whether the preliminary objection raises a pure point of law

Holding

It does not; determination requires calling of evidence

Reasoning

The court found the issues complained of were grievous and determinable only upon calling of evidence, echoing the claimant's reliance on Mukisa Biscuit and Oraro v Mbaja that an objection requiring ascertainment of facts is not a proper preliminary objection.

p. 12

Legal principles established

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  • The PSC lacks jurisdictional mandate to grant remedies for constitutional infractions or compensation for unfair termination as sought in the claim
  • A preliminary objection that requires ascertainment of facts cannot dispose of the suit in limine

Court orders

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  1. 1.The preliminary objection dated 30th December 2025 is dismissed for lack of merit
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 41
  • County Governments Act, No. 17 of 2012Section 77
  • Public Service Commission ActSections 77(3), 85, 86, 87(2)
  • Public Service Commission (County Appeals Procedures) Regulations, 2022
  • Employment ActSections 49

Cases cited (12)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KECA 48 (KLR)

    A court must down its tools once it finds it lacks jurisdiction

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    Jurisdiction flows from the Constitution or legislation and cannot be conferred by a court on itself

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

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • Kenya County Government Workers Union v County Public Service Board of Nyeri
    [2023] KEELRC 539 (KLR)

    Statutory procedure under County Governments Act and PSC Act as appropriate grievance mechanism

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696

    Definition of a proper preliminary objection raising a pure point of law

  • Oraro v Mbaja
    [2005] eKLR

    Preliminary objection improper where it requires ascertainment of facts

  • Nitin Properties Ltd v Jagjit S. Kalsi & another
    [1995] eKLR

    Objection ceases to be proper where evaluative judgment is required

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR

    Exhaustion of prescribed dispute resolution procedures

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR

    Doctrine of exhaustion is not automatic

  • Mutanga Tea & Coffee Company Ltd v Shikara Limited & another
    [2015] eKLR

    Exhaustion applied having regard to nature of dispute and remedies sought

  • Kenya Ports Authority v William Odhiambo Ramogi & 8 others
    [2019] eKLR

    Court must ascertain the true nature of the dispute and whether constitutional violations are genuine

  • Gichuki v Kenya Power & Lighting Company PLC
    [2025] KEELRC 2578 (KLR)

    Repeated short-term contracts for permanent work violate Article 41; general damages awarded

Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations jurisdiction of the ELRC); the judgment does not expressly cite the provision

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, "Robert Kioko Mwanzia v County Government of Kiamba & Thika Level 5 Hospital", Case Analysis (2026). ELRC Cause No. E046 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2608/eng@2026-09-25

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