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Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause No. E046 of 2025

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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·~10 min to read original · ~4 min brief

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.

Questions the Court framed

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

  1. 1.Whether the preliminary objection raises a pure point of law
  2. 2.Whether this Court has jurisdiction to hear and determine the suit, or whether the matter falls under the jurisdiction of the Public Service Commission
  3. 3.Whether the PSC has jurisdiction to grant the full range of remedies sought
  4. 4.Whether the preliminary objection can be determined as a preliminary issue

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

The bench

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

HW
majority

Wrote the judgment

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

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.

The PSC does not however have the jurisdictional mandate to grant remedies for constitutional infractions as sought herein and neither can the PSC then grant compensation for unfair termination as sought herein.
p. 12Limits of PSC remedies jurisdiction
It is the finding of this court that the preliminary objection thus lacks merit and the same is dismissed accordingly. Costs shall be in the cause.
p. 13Final orders - dismissal of preliminary objection

Issues in the judgment

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material

Court asserts as fact that the County Public Service Board employed the claimant, contradicting the pleaded case that the 2nd Respondent issued contracts and paid salary

minor

Paragraph 29 mislabels the parties, attributing the respondents' contention to 'the applicants'

minor

Preliminary objection dated 30th December 2025 in a cause numbered E046 of 2025; chronology unclear

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.