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ELRCStruck OutELRC Claim No. E003 of 2025

Edwin Situma Samita v Governor Bungoma County & 3 others

Employment and Labour Relations Court
1 October 2026
DNDavid Nderitu
1,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a county recruitment dispute, ruling job applicants must first use internal complaints and the Public Service Commission before going to court.

What this practically means

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Executive summary

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The Claimant, through M/S Owuor & Associates, filed a memorandum of claim dated 27th January 2025 on his own behalf and allegedly on behalf of 65 others, seeking declarations that the Respondents' actions and the 3rd Respondent's replacement appointments were unconstitutional, quashing of notices stopping their employment, reinstatement, and costs. The Respondents, through the Office of the County Attorney, filed a preliminary objection contending the claim was incompetent and defective, that the court lacked jurisdiction because the Claimant had not exhausted remedies under Section 77 of the County Governments Act and the Public Service Commission Act, that the County Government of Bungoma was not joined as the proper employer, and that the 1st, 2nd and 4th Respondents were improperly sued in their personal capacities protected by Section 133 of the County Governments Act. The Claimant countered that justice should be administered without undue regard to technicalities under Article 159(2)(d), that the Respondents were properly joined under Order 1 of the Civil Procedure Rules, and that the PSC lacked jurisdiction since the Claimant was not yet an employee, the suit having been filed to preserve the status quo. The court framed two issues: jurisdiction and costs. Applying Section 12 of the ELRC Act and the Lillian S jurisdiction test, it held the claim fell outside the court's purview: the recruitment complaints were human resource management issues for internal mechanisms and the PSC. It further held the claim incompetent because the 65 co-claimants were unnamed, no authority was availed under Rule 24 of the ELRC (Procedure) Rules 2024, and no elaborate reason justified representative filing of an ordinary claim. Non-joinder of the County Government, the ultimate employer, risked futile orders. The PO was allowed, the claim struck out, with no order on costs.

Questions the Court framed

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

  1. 1.Whether this Court has the jurisdiction to entertain the claim.
  2. 2.Costs.

Key legal issues

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01

Whether the ELRC has jurisdiction over the claim

Holding

The court held the claim falls outside ELRC jurisdiction; pre-employment recruitment issues must be escalated internally and to the PSC, and the claim was also incompetently filed.

Reasoning

Relying on Section 12 of the ELRC Act and the Lillian S test, the court found the shortlisting, interviewing and appointment complaints were human resource management issues belonging to internal mechanisms and the PSC under Section 77. Separately, the claim was incompetent: unnamed co-claimants, no availed authority under Rule 24 of the ELRC (Procedure) Rules 2024, and no reason for representative filing.

p. 7
02

Representative capacity and authority to file

Holding

The claim filed on behalf of 65 unnamed persons was incompetent; no authority was availed as required by Rule 24 of the ELRC (Procedure) Rules 2024.

Reasoning

The Claimant pleaded he sued on behalf of 65 others who were not named in the Memorandum of Claim, with no explanation why they could not sue individually. The alleged authority was not availed in hard copy as demanded by Rule 24. On that ground alone the claim was incompetent. The court distinguished petitions under Articles 47 and 258 from ordinary claims.

p. 8
03

Non-joinder of the County Government of Bungoma

Holding

Although joinder issues should not defeat a claim, non-joinder of the ultimate employer may render orders futile.

Reasoning

The court acknowledged that joinder or non-joinder should not ordinarily defeat a claim, but held that the County Government of Bungoma is the ultimate employer and its non-joinder may prevent effective resolution of the dispute, since a court should not issue orders in futility.

p. 8

Legal principles established

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  • Jurisdiction is a cardinal pre-requisite for a court to legally resolve a dispute
  • An individual may not file an ordinary claim on behalf of other persons with legal capacity to sue without an elaborate legal reason
  • Pre-employment human resources management issues must first go through internal dispute resolution mechanisms and then the PSC
  • A court should not issue orders in futility where the ultimate employer is not joined

Court orders

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  1. 1.The Preliminary Objection dated 6th March 2026 by the Respondent has merit and is hereby allowed.
  2. 2.The claim dated 27th January 2025 is hereby struck out for the reasons stated above.
  3. 3.There shall be no order on costs.

The bench

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

DN
majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act

Relief refused

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Declaration that the Respondents' actions are unconstitutional

Claim struck out as incompetent for lack of jurisdiction and defective filing

p. 9

Reinstatement of the Claimants to their positions

Claim struck out; court held issues belong before internal mechanisms and the PSC

p. 8

Costs of the suit

Court made no order on costs

p. 9

Costs

There shall be no order on costs.

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.

Jurisdiction is a cardinal pre-requisite in the ability of a court to legally resolve a dispute.
p. 7jurisdiction
While an individual may file a petition on his/her own behalf and others under Articles 47 & 258 of the Constitution, there has to be an elaborate legal reason for an individual to file an ordinary claim on behalf of other persons who have the requisite legal capacity to file such a claim.
p. 8representative proceedings
those are human resources management issues that ought to have been challenged through the internal disputes resolution mechanisms and if no resolution was reached the same should have been escalated to the PSC
p. 8exhaustion of remedies
a) The Preliminary Objection dated 6th March 2026 by the Respondent has merit and is hereby allowed.
p. 9disposition
b) Consequently, the claim dated 27th January 2025 is hereby struck out for the reasons stated above.
p. 9disposition
c) There shall be no order on costs.
p. 9costs

Issues in the judgment

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minor

Date of PO inconsistent between body and orders

minor

Statute for Section 77 exhaustion inconsistently identified

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, "Edwin Situma Samita v Governor Bungoma County & 3 others", Case Analysis (2026). ELRC Claim No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2741/eng@2026-10-01

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