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

dispute vide alternative forms of dispute resolution as ably provided for under Article 159(2)(c) of the Constitution of Kenya, 2010. 3. THAT the Claimant herein primarily raises the question of employment disciplinary procedure which is regulated by County Governments Act, No. 17 of 2012, Public Service Commission Act, 2017 and the attendant Public Service Commission (County Appeals Procedures) Regulations, 2022. 4. THAT Section 86 of Public Service Commission Act, provides that; 1) Any person who is dissatisfied or affected by a decision made by any authority or person in respect of a County Government public service may appeal to the Commission against the decision. 2) An appeal under subsection (1) shall be in writing and made within ninety days from the date of the decision: Provided that the Commission may consider an appeal out of time if, in the opinion of the Commission, the circumstances warrant it. 3) The Commission shall make regulations to guide the hearing and determination of appeals from the county public service boards. 4) After considering an appeal under this section , the Commission may— a) uphold the decision; b) set the decision aside; Page 2 of 13

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c) vary the decision as it considers to be just; or d) give such directions as it may consider appropriate with respect to the decision. 5. THAT this Court is not the right forum to hear and determine matters relating to disciplinary action at the first instance. That this court lacks jurisdiction to hear and determine this matter. That the correct and right forum is the Public Service Commission. 6. THAT the Claimant herein have failed, ignored and/or neglected to exhaust the alternative means of dispute resolution as provided by the said legislation. 7. THAT, this entire suit contravenes the provisions of Article 159(2)(c) of the Constitution of Kenya, 2010. 8. THAT, the instant suit is therefore premature, abuse of the court process, vexatious and frivolous. Respondents’ Submissions 2 The Respondents submitted on three issues: whether this honorable court has the jurisdiction to hear and determine this suit; whether the issues for determination before this court falls under the jurisdiction of Public Service Commission Committee; and whether the Claimant is entitled to the prayers sought before this Honorable court. 3 Relying on the principle that jurisdiction is everything, the Respondents cited Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), where the Court held that a court must down its tools once Page 3 of 13

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it finds that it lacks jurisdiction. They further relied on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the proposition that a court’s jurisdiction flows from the Constitution or legislation and that a court cannot confer jurisdiction upon itself beyond that which has been expressly granted by law. 4 It was therefore submitted that the existence of a statutory mechanism conferring jurisdiction upon another body deprived this Court of original jurisdiction until that mechanism had been exhausted. 5 The Respondents specifically relied on Sections 77(3), 86 and 87(2) of the Public Service Commission Act, 2017. It was submitted that Section 77(3) permits a person aggrieved by a decision of a County Public Service Board to appeal to the PSC within 90 days, subject to the Commission’s discretion to admit an appeal out of time. Section 86 similarly provides for an appeal to the Commission by a person dissatisfied or affected by a decision concerning the County Government public service, and empowers the Commission, upon hearing the appeal, to uphold, set aside or vary the decision or issue appropriate directions. 6 The Respondents argued that, by providing a complete statutory appellate mechanism, Parliament intended grievances arising from County Government public service Page 4 of 13

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decisions to be addressed by the PSC in the first instance. In their view, the Claimant ought first to have invoked that appellate mechanism and could only approach this Court thereafter if dissatisfied with the PSC’s decision, therefore, the Court’s jurisdiction has been invoked prematurely. 7 Further, reliance was placed on Section 87(2) of the Public Service Commission Act, which expressly bars the institution of court proceedings concerning matters falling within the Commission’s appellate jurisdiction until the prescribed procedure has been exhausted. The Respondents submitted that the statutory exhaustion requirement was mandatory and consequently barred the present suit at this stage. 8 The Respondents relied on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), where the Court of Appeal held that where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a particular grievance, that procedure ought to be strictly followed. It was submitted that the principle applied to the present dispute because the Claimant had an available statutory avenue before the PSC but had bypassed it and approached the Court directly. The Respondents argued that this Court could only properly exercise its jurisdiction after the statutory process had been completed. 9 The Respondents further invoked Article 159(2)(c) of the Constitution, submitting that the constitutional recognition Page 5 of 13

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of alternative forms of dispute resolution reinforces the need to respect statutory mechanisms established for resolution of particular disputes. They argued that statutory mechanisms should not be circumvented by directly invoking the Court’s jurisdiction where Parliament had prescribed a specific procedure for redress. 10 In support of their position, the Respondents relied on Kenya County Government Workers Union v County Public Service Board of Nyeri [2023] KEELRC 539 (KLR), where the Court, dealing with a dispute concerning termination through retirement, recognized the statutory procedure under Section 77 of the County Governments Act read together with Sections 85, 86 and 87 of the Public Service Commission Act as the appropriate mechanism for resolving the grievance. 11 It is the Respondents’ submissions that the Claimant’s grievance, being founded on an employment contract within the County Government public service, ought first to have been presented to the PSC. Having failed to exhaust that statutory avenue, the Claimant was said to have approached the Court prematurely. Claimant’s Submissions 12 The Claimant submitted that the Preliminary Objection did not raise a pure point of law capable of determination at the preliminary stage. Relying Page 6 of 13 on Mukisa Biscuit

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Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, it was argued that a Preliminary Objection must arise from the pleadings or their clear implication and must be capable of disposing of the matter without requiring the Court to ascertain contested facts. 13 The Claimant contended that the Respondents’ objection was premised on an assumption that the claim was merely an appeal against a decision of a County Public Service Board, whereas the Statement of Claim pleaded a broader employment and constitutional dispute. 14 In that regard, the Claimant submitted that the claim encompassed unfair termination under the Employment Act, unfair labour practices contrary to Article 41 of the Constitution, rolling short-term contracts, irregular payment of salary, non-issuance of payslips, denial of leave and lack of fair terms of service. 15 It is the Claimant’s submission that the Respondents are seeking to challenge a claim different from the one actually pleaded before the Court. He maintained that the pleadings did not demonstrate that the County Public Service Board appointed, disciplined or terminated his employment, as he pleaded that the 2 nd Respondent issued his contracts, managed his work and paid his salary. Page 7 of 13

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16 The Claimant further relied on Oraro v Mbaja [2005] eKLR and Nitin Properties Ltd v Jagjit S. Kalsi & another [1995] eKLR for the proposition that a preliminary objection ceases to be proper where its determination requires the Court to investigate or ascertain facts or exercise an evaluative judgment. 17 The Claimant submitted that determining whether the PSC appellate framework applied to the Claimant requires evidence concerning the appointing authority, nature of the contracts, payroll arrangements, disciplinary control and the relationship between the 2 nd Respondent and the County Government establishment. Similarly, the Court will have to determine whether the PSC mechanism was capable of addressing the entire dispute and granting the remedies sought. Therefore, the objection cannot be determined as a bare question of law. 18 On exhaustion, the Claimant acknowledged the general principle that where Parliament has established a statutory dispute-resolution mechanism, a litigant should ordinarily utilize it before approaching the Court. 19 Relying on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR and Mutanga Tea & Coffee Company Ltd v Shikara Limited & another [2015] eKLR; the Claimant submitted that the doctrine of exhaustion is not Page 8 of 13

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automatic and has to be applied having regard to the nature of the dispute and the remedies sought. 20 The Claimant further relied particularly on Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR, submitting that the Court must first ascertain the true nature of the dispute and then determine whether the constitutional violations pleaded were genuine or merely introduced to circumvent the statutory mechanism. It was argued that the Respondents failed to undertake that inquiry, having simply characterized the claim as a challenge to a County Public Service decision. 21 The Claimant maintained that the dispute extended beyond termination and included alleged unfair labour practices, repeated short-term contracts for work said to be permanent in nature, irregular salary payments, failure to issue payslips, denial of leave and violation of Article 41 of the Constitution. It was submitted that the Article 41 claim is founded on specific factual allegations and is not merely a device for avoiding the PSC process. 22 In support, the Claimant relied on Gichuki v Kenya Power & Lighting Company PLC [2025] KEELRC 2578 (KLR), where the Court found that repeated three-month contracts for permanent work violated Article 41 and awarded general damages for the constitutional violation. Page 9 of 13

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23 He further argued that, even assuming the PSC framework applied, exhaustion will not bar the present claim because the reliefs sought went beyond an administrative challenge to a termination decision. The claim sought, among other reliefs, constitutional declarations, general damages for violation of Article 41, statutory compensation under the Employment Act, notice pay, leave pay, interest, costs and a certificate of service. 24 It was submitted that the Respondents had not demonstrated that the PSC possessed jurisdiction to grant the full range of constitutional and statutory remedies sought, particularly constitutional declarations, general damages for breach of Article 41 and compensation under Section 49 of the Employment Act. 25 On the prayer to strike out the claim, the Claimant submitted that such an order would be disproportionate because the claim disclosed a substantive employment and constitutional dispute which ought to be determined on its merits. 26 It is the Claimant’s submission that the Respondents have not filed a response to the claim, therefore, they have not substantively answered the allegations concerning unfair labour practices and the violation of Article 41. He urged the Court to preserve the claim, dismiss the preliminary objection and direct the Respondents to file their response Page 10 of 13

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so that the dispute could proceed to determination on its merits. 27 The Claimant submitted that the preliminary objection failed both procedurally and substantively: procedurally, because it did not raise a pure point of law and instead depended on contested factual assumptions concerning the applicability of the PSC framework; and substantively, because the Respondents failed to demonstrate that the PSC mechanism applied to the Claimant or that it was capable of determining the full employment and constitutional dispute and granting all the remedies sought. 28 I have examined all the averments and submission of the parties herein. The respondents have raised a preliminary objection concerning this cause citing lack of jurisdiction for this court to handle this cause citing the provisions of section 86 of the Public Service Commission Act which has been cited herein. 29 The applicants contend that the claimants have approached this court prematurely without 1 st appealing to the Public Service Commission as provided under the law. 30 Indeed section 86 of the PSC Act opines that an appeal from the decision of the County Public Service Board should be appealed to the Public Service Commission. Page 11 of 13

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31 The issue in this claim concerns allegation of unfair termination by the respondent applicant. The claimant contends that the respondent kept him on short job contracts and so denied him job security and benefits that come with job security. 32 The claimant therefore seeks compensation for unfair termination, damages for unfair labour practices and violation of rights under the Constitution among other prayers. 33 The County Public Service Board is the one that had employed the claimant. The issue then is whether the PSC has the jurisdiction to handle an appeal arising from the complaints raised and whether the said issues can be determined as preliminary issues. 34 Under section 86 of the PSC Act, the PSC upon considering an appeal from the decision of the County Public Service Board may uphold the decision, set aside the decision, vary it or give directions as it may deem fit. 35 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. 36 The preliminary objection then cannot be able to determine this claim as the issue complained of are Page 12 of 13

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grievous and can only be determinable upon calling of evidence. 37 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. Dated, Signed and Delivered virtually at Machakos this 25th Day of September 2026. HELLEN WASILWA JUDGE Page 13 of 13

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