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

1. The Petitioner was an employee of the 1st Respondent employed as a Deputy Director, Human Resource Management and Development, and was acting as a Director Human Resource Management and Development. The 1 st Respondent commenced a competitive recruitment process for the Director position. The petitioner alleged the process was irregular, unconstitutional and unfair in her Petition dated 9th of June, 2026 and filed on the same day. The petition was amended as dated on 2 nd July 2026.The petitioner sought for the following Orders:A. A declaration that recruitment process undertaken by the 1st Respondent for the position of Director Human Resource Management and Development on 6th of May, 2026 violated the provisions of the Constitution and the County Governments Act and is thus quashed for being an illegality. B. A declaration that subjecting the Petitioner to disciplinary proceedings by the 2nd Respondent was unfair labour practise and a violation of Article 41 of the Constitution. C. An Order that fresh recruitment process be carried out in strict adherence to the Constitution, the County Government Act, Human Resource Policies, scheme of service, the CHRMAC Minutes and all relevant laws and regulations. 2. Alongside the Petition, the Petitioner filed a Notice of Motion dated 9tH June 2026, seeking the following Orders:(i) spent R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 2 | 10 application

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(ii)That pending the service of this application and the interpartes hearing date, the Respondents be restrained from issuing any appointment letter for the position of Director Human Resource Management and Development and if already issued, the Respondents be barred from implementing such appointment. (iii)That pending the hearing and determination of this application interpartes, the Respondents be restrained from issuing any appointment letter for the position of Director Human Resource Management and Development and if already issued, the Respondents be barred from implementing such appointment. (iv)That pending the hearing and determination of the main Petition, the Respondents be restrained from issuing any appointment letter for the position of Director Human Resource Management and Development and if already issued, the Respondent be barred from implementing such appointments. (v) Such other order (s) as the Court may deem fit. 3. Upon service of both the Petition and the Notice of Motion Application on the Respondent, the Respondent entered appearance through the lawfirm of EK Mutua & Co Advocates and filed a Notice of Preliminary Objection dated 29 th June 2026 raising the following points of law a. That this Honourable Court lacks jurisdiction to entertain a suit in which the County Assembly is not properly represented by Counsel. R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 3 | 10

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b. That this Honourable Court lacks jurisdiction to entertain a suit in which the county Assembly is represented by Counsel who does not have the mandate to do so as was determined by the High court in Nakuru in Petition No. E001 of 2026-Gikenyi B & 6 Others v Council of Governors and 68 Others. c. That the Petitioner's pleadings as drafted and filed are incurably defective, they offend the letter and spirit of the findings in the above mentioned case as well as the Laws of Kenya. d. That the application is incurably defective, incompetent and an abuse of the Court process and should be dismissed with costs. Decision Whether the court has jurisdiction in view of lack of exhaustion of statutory mechanism under section 85, 86 and 87 of the Public Service Commission Act 4. It is obvious to the court that it has original jurisdiction in the matter of employment of the petitioner as held in Moi Teaching and Referral Hospital with 3 others v Dr Magare Gikenyi and others, Supreme Court Case No. E030 and E.033 of 2025. The Supreme Court held that the jurisdiction of the ELRC is confined purely to disputes arising from the existing employeremployee relationship. The ELRC has jurisdiction to hear and determine Constitutional Petitions challenging the constitutionality or legality of the pre-employment procedures and processes such as advertisements of vacancies, shortlisting of the candidates, the interview and the selection processes. The exception to the jurisdiction, as per the Supreme Court R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 4 | 10

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decision, is with respect to a pre-employment dispute brought in public interest. The other exception in which the court will decline jurisdiction is when there is a statutory mechanism for resolving the dispute, for want of exhaustion. 5. It is undisputed that there are statutory mechanisms to challenge the 1st respondent's recruitment processes. Before the court, the petitioner challenges the recruitment process for the position of Director, Human Resources Management and Development, undertaken on the 6th May 2026, on the basis of violations of the Constitution and the Country Government Act. The Country Government Act section 77 created mechanisms for resolution of any dispute on recruitment by the 1st respondent as follows‘77. Appeals to the Public Service Commission (1)Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the "Commission") against the decision. (2)The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of—(a)recruitment, selection, appointment and qualifications attached to any office;’ R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 5 | 10

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6. The jurisdiction of the Public Service Commission to determine disputes of recruitment under the 1st respondent is as stated in section 85 of the Public Service Commission Act, to wit‘85. Appeal from County Government public service The Commission shall, in order to discharge its mandate under Article 234(2)(i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of— (a)recruitment, selection, appointment and qualifications attached to any office;’ 7. The petitioner submits that the dispute is indeed within the powers of the court, and that whether the petitioner chose to file a petition or statement of claim is within her right to choose which avenue to use to access justice. I find this submission is misplaced. It was held by the Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) that – ‘where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.’ 8. Parliament, in its own wisdom, legislated the process for challenging the recruitment by the 1st respondent. (Section 77 of the County Government Act and section 85 of the Public Service Commission Act). This court cannot bypass the statutory mechanisms by accepting first-instance jurisdiction on R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 6 | 10

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the basis of this constitutional petition. It is a case of constitutional avoidance. 9. The court is guided by the Court of Appeal decision in Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), In Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), where the Court of Appeal held as follows:‘There is no dispute that the germane dispute is the stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes.’ 10. Further, In Secretary County Public Service Board & another v Hulbhai Gedi Abdille [2016] eKLR the Court of Appeal in a similar matter held that it is the Public Service Commission which is clothed with the primary jurisdiction. The court, in allowing the appeal, held that the jurisdiction of PSC is unfettered even on procedural matters and the court thus had no jurisdiction over decisions by the county public service board. Further, the R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 7 | 10

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court restrained this court from dealing with those matters at first instance as follows‘There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. The court said In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.’’ 11. In the upshot, the court holds that it lacks jurisdiction as first instance. The dispute ought to be before the Public Service Commission (section 85 of the Public Service Commission Act). R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 8 | 10

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Disposition 12. The Notice of preliminary objection by the respondent dated 29 th June 2026 is upheld. PUBLIC 13. I strike out the petition dated 9th June 2026 and amended on 22 nd July 2026. and the application thereunder for being filed prematurely before the court and for want of exhaustion of the existing statutory dispute resolution mechanisms. This being a constitutional petition and parties being in an employment relationship, I order each party to bear their own costs. 14. The file is marked as closed. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 TH DAY OF SEPETEMBER, 2026. Jemimah Keli, JUDGE. IN THE PRESENCE OF: C/A Otieno Petitioner- Ms Okundo h/b Guserwa - I seek a stay Respondent – Kalii COURT ORDER The request for a stay is denied. It is a negative order. Jemimah Keli, R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 9 | 10

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JUDGE 18/09/2026 R U L I N G I N M A C H A K O S P E T I T I O N N O . E 0 1 2 O F 2 0 2 6 P a g e 10 | 10

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