Stanley Esibanze Okanga v The Governor, County Government of Trans Nzoia & 3 Others; Kennedy Etyang Seme & 3 Others (Interested Parties)

ASHTON MULUPI………………….………3RD INTERESTED PARTY JANE MASIKA WACHWENGE…….……4TH INTERESTED PARTY RULING NO. 2 1. This Ruling is in respect to the 1 st, 3rd and 4th Respondents’ Preliminary objection dated 26th June 2026 2. In the Preliminary Objection, the 1st, 3rd and 4th Respondents seek the striking out of the Petition dated 15th June 2026 on the following ground: a. That the Honourable Court before the instant proceedings are filed lacks the requisite jurisdiction to adjudicate over the matter by dint of the provisions of section 77(2) of the County Governments Act as read with Sections 85 & 86 of the Public Service Commission Act. 3. The Preliminary Objection was canvassed by way of written submissions. The submissions of the 1 st, 3rd and 4th Respondents’ are dated 30th June 2026, the Petitioner’s KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 2

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submissions are dated 13th July 2026, the 2nd Respondent’s submissions are dated 16th July 2026. The 1st, 3rd and 4th Respondents’ submissions 4. In their submissions, the 1st, 3rd and 4th Respondents identified the issue for determination to be whether this Court has jurisdiction to hear and determine the Petition, by dint of section 77(2) of the County Governments Act, read together with sections 85 and 86 of the Public Service Commission Act. 5. They submitted that where the Constitution or an Act of Parliament prescribes a clear procedure for the redress of a grievance, that procedure must be strictly followed. 6. Citing Section 77 of the County Governments Act, the Respondents contended that decisions concerning the engagement of persons in county governments, including their recruitment, selection, appointment and the qualifications attached to the respective offices, are matters that must, in the first instance, be referred on appeal to the Public Service Commission. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 3

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7. They further submitted that Article 234(2) of the Constitution affirms the jurisdiction of the Public Service Commission to hear and determine appeals relating to county government public service, as is the case herein. 8. The Respondents also relied on section 85 of the Public Service Commission Act, which affirms the Commission’s jurisdiction and mandate under Article 234(2) of the Constitution to hear and determine appeals arising from decisions relating to the engagement of persons in county governments, including decisions concerning recruitment, selection, appointment and the qualifications attached to any office. 9. Further, they submitted that section 86 of the Public Service Commission Act permits any person who is dissatisfied with, or affected by, a decision of an authority or person relating to a county public service to appeal to the Commission. Section 87(2) of the Act, on the other hand, prohibits the institution of legal proceedings before a court in respect of matters falling within the Commission’s jurisdiction unless the prescribed procedure has first been exhausted. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 4

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10. According to the 1st, 3rd and 4th Respondents, the requirement to lodge an appeal with the Commission is neither optional nor selective, but is couched in mandatory terms. They maintained that the Commission exercises specialised jurisdiction specifically designed by Parliament to address grievances of the nature raised by the Petitioner and, therefore, provides the most appropriate avenue for redress in the first instance. 11. In support of their submissions, the Respondents relied on Leonard Sigei Arap Bett v Governor, Bomet County & 14 Others [2021] eKLR and Evans Otieno Oloo v Governor, Homa Bay County & 3 Others [2022] eKLR for the proposition that a party aggrieved by a decision relating to county public service must first exhaust the appellate procedure prescribed under the County Governments Act and the Public Service Commission Act before seeking redress before the Court. 12. In the end, the 1st 3rd and 4th respondents maintained that this court lacks jurisdiction to hear and determine this petition. They consequently urged the Court to dismiss the Petition in its entirety, with costs. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 5

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The 2nd Respondent’s submissions 13. In support of the Preliminary Objection, the 2nd Respondent submitted that this Court lacks jurisdiction to hear and determine the Petition. It contended that, as framed, the Petition falls outside the jurisdiction of the Employment and Labour Relations Court. 14. According to the 2nd Respondent, the Petitioner’s own pleadings demonstrate that the appropriate avenue for redress in respect of the affected Chief Officers is that prescribed under section 77(1) of the County Governments Act, 2012. 15. The 2nd Respondent submitted that, for an appeal to lie to the Public Service Commission, the impugned decision need not have been made by the County Public Service Board. It may also have been made by a person exercising or purporting to exercise disciplinary control over a county public officer. According to the 2 nd Respondent, the contention that the affected Chief Officers were deprived of their right of appeal to the Public Service Commission was immaterial. In support of this position, the 2 nd KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 6

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Respondent relied on the decision in Odera t/a A. J. Odera & Associates v Machira t/a Machira & Co. Advocates, Civil Appeal No. 161 of 1999, [2013] eKLR and County Assembly of Trans Nzoia v Arprim Consultants Limited & 2 Others, Kitale High Court Miscellaneous Civil Application No. E066 of 2025. 16. The 2nd Respondent further referred to paragraph 1 of the Petition, in which the Petitioner describes himself and the capacity in which he instituted the proceedings and submitted that the Petition was instituted on behalf of the residents and taxpayers of Trans Nzoia County, rather than employees or persons within an employer–employee relationship. 17. The 2nd Respondent submitted that the Petition alleges constitutional and statutory violations against the 1 st Respondent which violations challenge the 1 st Respondent’s exercise of constitutional and statutory powers and, therefore, fall outside the ambit of Article 162(2)(a) of the Constitution. In the 2nd Respondent’s view, they raise questions of constitutional interpretation KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 7

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falling within the jurisdiction of the High Court under Article 165(3)(d)(i) and (ii) of the Constitution. 18. In support of that position, the 2nd Respondent relied on Moi Teaching and Referral Hospital & 3 Others v Dr Magare Gikenyi & 76 Others, Supreme Court Petition No. E030 as consolidated with Petition No. E033 of 2025, where the Supreme Court observed: “The 1st to 7th Respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalisation and discrimination of women and people with disability. Nowhere do they plead on behalf of those who applied for the positions of CEOs or MDs and were not successful. The Respondents moved the High Court for the vindication of the alleged breach of specified constitutional rights. The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 8

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the High Court under Article 165(3)(b) and (d) of the Constitution.” 19. The 2nd Respondent therefore submitted that the Preliminary Objection satisfies the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and urged the Court to uphold the Preliminary Objection, down its tools and strike out the Petition, together with any application filed thereunder, with costs to the 2nd Respondent. The Petitioner’s submissions 20. In his submissions, the Petitioner identified the issues for determination to be: a. Whether the Preliminary Objection raises a pure point of law b. Whether the subject matter of the Petition falls within the Appellate jurisdiction of the Public Service Commission c. Whether the doctrine of exhaustion applies where the alternative forum cannot determine the predominant constitutional, institutional and public finance questions or grant effective interim and final relief. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 9

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21. On the first issue, the Petitioner submitted that the Preliminary Objection does not raise a pure point of law capable of determination at this stage. According to the Petitioner, the Petition is not a routine challenge to recruitment, selection, appointment, disciplinary action or any other ordinary employment decision but is a constitutional and public law challenge concerning the alleged unlawful creation of public offices, interference with an independent statutory Board, the alleged usurpation of that Board’s statutory mandate and the threatened misuse of public funds. 22. The Petitioner contends that the Respondents do not accept the Petitioner’s pleaded facts. It is submitted that in their responses, the Respondents contend that the advertised offices were vacant; that the County Public Service Board independently and lawfully approved the creation of the additional offices; that the requisite County Executive Committee resolution existed; that adequate budgetary provision had been made; that the previous Board completed its lawful term and was not prematurely KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 10

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removed; and that the 1st Respondent did not interfere with the Board’s composition, independence or operations. 23. The Petitioner submits that the applicability of section 77 of the County Governments Act and sections 85 and 86 of the Public Service Commission Act therefore depends on which of those competing factual accounts is correct. 24. It is the Petitioner’s submission that before determining whether the Petition concerns an appeal falling within the Public Service Commission’s jurisdiction, this Honourable Court would first have to ascertain whether the advertised offices were vacant or lawfully occupied; whether the additional offices had been lawfully established; whether the County Public Service Board made an independent and valid decision; whether the necessary County Executive Committee resolution existed; whether the offices were supported by an approved budgetary allocation; whether the original Board completed its term or was prematurely removed and whether the 1st Respondent interfered with the Board or procured a predetermined outcome. 25. The Petitioner submits that these matters cannot be determined from the face of the Preliminary Objection as KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 11

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they require an examination of evidence, including the relevant resolutions, correspondence, budgets, advertisements and records relating to the tenure and replacement of the Board. 26. The Petitioner maintains that this Honourable Court is not only being asked to interpret and apply section 77 of the County Governments Act and sections 85 and 86 of the Public Service Commission Act but rather, the Court is being invited to resolve contested facts in order to determine whether the appellate mechanism before the Public Service Commission applies. This, according to the Petitioner is inconsistent with the nature of a preliminary objection as enunciated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 27. On the second issue, the Petitioner submits that the text of the Constitution makes it clear that the Commission exercises appellate, rather than original, jurisdiction. It is the Petitioner’s submission that there must therefore be an appeal arising from a decision falling within the administration of the county public service. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 12

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28. The Petitioner submitted that section 77 provides an appellate mechanism for persons dissatisfied with or affected by employment decisions made within the county public service structure. He argued, that the provision does not confer omnibus jurisdiction upon the Public Service Commission to determine every constitutional, institutional and fiscal dispute in which a county public office is mentioned. 29. While citing section 85 of the Public Service Commission Act, the Petitioner submitted that these provisions do not confer upon the Commission jurisdiction to determine the predominant issues raised in the Petition. In his view, the critical questions raised in the Petition fall outside the jurisdiction of the Public Service Commission. 30. Regarding the alleged interference with the County Public Service Board, the Petitioner submitted that the Board is a statutory body whose functions are assigned under Article 235 of the Constitution and sections 57, 59 and 60 of the County Governments Act. He maintained that it is the Board, and not the 1st Respondent acting unilaterally, that is vested with statutory KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 13 responsibility for the

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establishment and abolition of offices in the county public service, subject to the conditions and procedures prescribed by law. 31. The Petitioner argued that the Petition raises the question whether the 1st Respondent undermined the Board’s independence, caused the premature exit of a Board that had rendered professional advice which was inconvenient to him, and engineered a replacement Board to validate his preferred outcome. 32. According to the Petitioner, these allegations implicate the rule of law under Article 10 of the Constitution; the responsible exercise of public authority; integrity and objectivity under Article 73; public service values under Article 232; the constitutional allocation of county public service functions under Article 235; and the prohibition against exercising statutory power for an improper Public Service purpose. 33. The Petitioner submitted that the Commission’s appellate jurisdiction over the engagement of persons and other employment decisions does not extend to conducting an original constitutional inquiry into KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 14

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executive interference with the composition and independence of a County Public Service Board. 34. With regard to the alleged unlawful establishment of the offices, the Petitioner submitted that there is an essential distinction between a decision to recruit or appoint a person to a lawfully existing office and a challenge to whether the office itself was lawfully established. 35. He contended that an appeal concerning the engagement of a person presupposes the lawful existence of the office into which that person is to be engaged while the present Petition challenges the process by which the additional offices were established. 36. The Petitioner maintained that the matters raised in the Petition include the alleged absence of a valid County Executive Committee resolution; the absence of lawful initiation and consideration by the County Public Service Board; whether the offices were properly established under the County Governments Act; whether the necessity for the additional offices was demonstrated; whether there was a budgetary allocation to support the offices; and KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 15

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whether the applicable fiscal responsibility requirements were complied with. 37. He therefore argued that these questions could not be reduced to an appeal concerning recruitment or appointment. 38. On public finance and fiscal responsibility, the Petitioner submitted that the Public Finance Management Act requires a County Treasury to manage public finances in accordance with fiscal responsibility principles and within the limits prescribed by the relevant regulations. 39. He further submitted that the Public Finance Management (County Governments) Regulations impose, among other requirements, limits on expenditure on wages and benefits and require the responsible management of county expenditure. 40. The Petitioner alleged that the additional offices were not supported by an approved budgetary allocation; would create continuing financial obligations for the County; were established without regard to the County’s fiscal position; and would result in the imprudent expenditure of public resources. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 16

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41. The Petitioner submitted that the Public Service Commission does not exercise appellate jurisdiction under the Public Finance Management Act. It could not, therefore, determine whether the County Treasury and the Governor had Constitution, complied section 107 with Article of the 201 Public of the Finance Management Act, the applicable expenditure ceilings, budget-authorisation requirements or fiscal responsibility principles. 42. He further contended that the Public Service Commission could not grant effective relief against the implementation of an unlawful county budgetary commitment within its broader public finance context. In his view, the public finance claims were neither incidental nor decorative but constituted an independent and substantial foundation of the Petition. 43. In light of the foregoing, the Petitioner submitted that the Petition raised matters falling outside the appellate jurisdiction of the Public Service Commission and in respect of which the Commission could not grant effective KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 17

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relief. He therefore urged the Court to dismiss the Preliminary Objection. 44. Regarding the doctrine of exhaustion, the Petitioner submitted that it does not apply where the prescribed statutory dispute-resolution mechanism is unsuitable for determining the dispute in question. 45. The Petitioner relied on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (Constitutional Petition 159 of 2018 & 201 of 2019 (Consolidated)) [2020] KEHC 10266 (KLR) and Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte National Super Alliance Kenya (NASA) and Republic v County Government of Nyeri & another; Edith Kaluhi Kegode t/a Annabelle Guest House (Ex parte Applicant) (Judicial Review E003 of 2022) [2023] KEHC 2174 (KLR) (23 March 2023) (Ruling), for the proposition that the appellate forum would not suitably advance constitutional rights and where a party would not have an adequate audience before the prescribed forum of first instance. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 18

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46. The Petitioner submitted that recourse to a statutorily prescribed alternative forum will not be enforced where, inter alia, the authoritative dispute constitutional raises questions interpretation; requiring the matter concerns a public interest extending beyond an individual grievance; the statutory process cannot grant the necessary relief; or the Petitioner would not have an adequate audience before the appellate forum. 47. The Petitioner contended that the present matter falls within the recognised exceptions to the exhaustion doctrine because he is a citizen litigating in the public interest and not an aggrieved county employee pursuing an employment appeal. He argued that he would not ordinarily have audience before the Public Service Commission. 48. He further submitted that the Petition challenges the lawful existence of the additional offices and not merely the appointment of persons to those offices. Moreover, the 1st Respondent’s alleged interference with the County Public Service Board falls outside the ordinary appellate jurisdiction of the Public Service Commission. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 19

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49. In addition, the Petitioner submitted that the Petition raises substantial questions under the Public Finance Management Act; concerns the threatened expenditure of public funds; requires urgent conservatory relief; and raises matters in respect of which the Public Service Commission cannot grant complete and effective relief capable of resolving the entire dispute. 50. In the end, the Petitioner urged the Court to find that the Preliminary Objection was misconceived. He maintained that the Petition is founded on disputed facts that could not be resolved without examining evidence and therefore did not raise a pure point of law. The 1st, 2nd, 3rd and 4th Interested Parties’ submissions 51. The 1st, 2nd, 3rd and 4th Interested Parties identified the following issues for determination: i. Whether the Preliminary Objection raises a pure point of law capable of determination at the preliminary stage KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 20

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ii. Whether the subject matter of the Petition falls within the appellate jurisdiction of the Public Service Commission iii. Whether the doctrine of exhaustion applies where the alternative forum cannot determine the predominant constitutional, institutional and public finance questions or grant effective interim and final relief. 52. On the first issue, the Interested Parties while relying on the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 at 700, submitted that two consequences flow from that statement. First, that the Respondents must accept the Petitioner’s pleaded facts for purposes of the Preliminary Objection and second, they must demonstrate that, even on the basis of those assumed facts, the Petition is barred in law. They argued that if the Preliminary Objection can succeed only after the Court rejects, qualifies or recharacterises the pleaded facts, then it is not a proper preliminary objection. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 21

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53. According to the Interested Parties, the Preliminary Objection could not be resolved on the face of the pleadings alone. They asserted that the Respondents had invited the Court to deem the Petition as a dispute concerning the engagement of persons in the county public service which characterisation is itself contested. 54. They maintained that the Petition concerns the unlawful creation of public offices, interference with an independent statutory Board, usurpation of public power and threatened expenditure in breach of public finance law. 55. They argued that the process of determining the correct factual position could not properly take place at the preliminary stage because it would require the production and examination of evidence. 56. The Interested Parties further submitted that if the facts pleaded in the Petition were assumed to be true, as they must be at the preliminary stage, the dispute could not reasonably be reduced to a routine employment or recruitment dispute. In their view, the Petition raised constitutional and public law questions concerning the creation of public offices, institutional independence, KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 22

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abuse of public power and the threatened misuse of public resources. 57. They consequently maintained that the Preliminary Objection did not satisfy the requisite threshold and ought to be dismissed. 58. On the issue whether the Petition falls within the appellate jurisdiction of the Public Service Commission, the Interested Parties while citing Article 234(2)(i) of the Constitution submitted that the constitutional language was deliberate and demonstrated that the Commission exercises appellate, rather than original, jurisdiction. They averred that the Commission’s mandate is invoked where there is an appeal from a qualifying decision made in the administration of a county public service. 59. The Interested Parties further submitted that section 77(1) of the County Governments Act gives effect to that constitutional mandate as the provision permits a person who is dissatisfied with or affected by a decision made by a County Public Service Board, or by a person exercising or purporting to exercise disciplinary control against a county public officer, to appeal to the Commission. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 23

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60. They asserted that section 77(2) identifies the categories of decisions that may be appealed while sections 85 and 86 of the Public Service Commission Act, which they submitted operate within the same statutory framework concerns appeals relating to the engagement of persons in county governments, including recruitment, selection, appointment, qualifications, remuneration, terms of service, disciplinary control, retirement, removal, pension benefits and gratuity and prescribes the procedure applicable to such appeals respectively. 61. The Interested Parties, submitted that the statutory framework establishes a specialised appellate mechanism for employment and human resource decisions in the county public service. It does not confer unlimited jurisdiction upon the Commission to determine every dispute bearing some factual connection to the county public service. 62. They argued that the Petition does not merely challenge a recruitment outcome or an appointment decision made by the County Public Service Board but it challenges the KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 24

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legality of the institutional and fiscal steps that preceded the recruitment process. 63. The Interested Parties submitted that an appeal against a recruitment process ordinarily presupposes the lawful existence of the office in respect of which recruitment is being undertaken. That in the present case, the lawful existence of the impugned offices was itself in dispute. 64. They further submitted that the Public Service Commission does not have a general constitutional mandate to determine whether a Governor or County Executive unlawfully interfered with the independence of a County Public Service Board, procured the replacement of that Board, usurped its functions or acted in breach of the constitutional allocation of powers under Article 235 of the Constitution. In their view, these were questions concerning the legality of executive action and the integrity of statutory institutions. 65. Similarly, the Interested Parties maintained that the Commission was not the appropriate forum to determine whether public offices had been created without lawful budgetary authority; whether the intended expenditure KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 25

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complied with Article 201 of the Constitution; or whether the Public Finance Management Act and the principles of fiscal responsibility had been violated. 66. The Interested Parties submitted that none of these questions was transformed into an employment appeal merely because recruitment advertisements had been issued. In their view, the advertisements were merely the visible result of the alleged constitutional and statutory violations and did not constitute the entire dispute. They urged the Court to consider the substance of the controversy. 67. They further argued that interpreting sections 77, 85 and 86 as encompassing the present Petition would improperly enlarge the Commission’s appellate jurisdiction beyond the scope contemplated under Article 234(2)(i) of the Constitution. 68. According to the Interested Parties, a statutory provision cannot confer upon the Commission original constitutional jurisdiction that the Constitution itself does not grant. They therefore submitted that the Preliminary Objection ought to fail on that ground as well. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 26

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69. On the third issue, the Interested Parties submitted that where Parliament has established a clear and effective dispute-resolution mechanism, parties should ordinarily exhaust that mechanism before approaching the Court. 70. They submitted, however, that the doctrine cannot be applied mechanically or without regard to the nature of the dispute, the jurisdiction of the alternative forum, the effectiveness of the remedies available before that forum and the constitutional interests at stake. The Interested Party submitted that an alternative mechanism must be capable of addressing the real dispute and granting meaningful relief. In support of this position, the case of Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (Constitutional Petition Nos. 159 of 2018 and 201 of 2019 (Consolidated)) [2020] KEHC 10266 (KLR) and Republic v Independent Electoral and Boundaries Commission & Others ex parte National Super Alliance (NASA) was cited. 71. According to the Interested Parties, the Public Service Commission does not possess the same constitutional KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 27

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mandate or remedial jurisdiction to issue the conservatory, declaratory and supervisory orders sought in the Petition. 72. The Interested Parties maintained that the doctrine of exhaustion exists to facilitate the effective and orderly resolution of disputes. It does not exist to shield allegedly unlawful public action from timely constitutional scrutiny. They argued that where an alternative forum lacks jurisdiction over the principal dispute and cannot grant the necessary relief, insisting upon exhaustion would elevate form over substance. 73. Accordingly, the Interested Parties submitted that even if the Court were to find that some aspects of the Petition were connected to recruitment or engagement in the county public service, its constitutional, institutional and public finance dimensions brought it within the recognised exceptions to the doctrine of exhaustion. 74. They maintained that the Court was the forum capable of resolving the entire dispute and granting effective relief. 75. The Interested Parties submitted that the Preliminary Objection was founded on a mistaken characterisation of the Petition. They maintained that the Petition did not seek KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 28

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appellate review of an ordinary human resource decision but challenged the alleged unlawful creation of public offices, interference with a statutory Board, usurpation of public power and threatened expenditure of public funds contrary to the Constitution and statute. 76. They further submitted that the Preliminary Objection was dependent upon disputed facts. Its determination would require the Court to examine evidence and resolve contested matters concerning the existence of vacancies, the establishment and funding of the offices, the decisions of the County Executive Committee, the independence of the County Public Service Board and the circumstances surrounding the replacement of that Board. 77. The Interested Parties therefore maintained that the Preliminary Objection did not raise a pure point of law within the principles established in Mukisa Biscuit. 78. Consequently, the Interested Parties urged the Court to dismiss the Notice of Preliminary Objection dated 26 th June 2026, award them the costs of the Preliminary Objection and make such further orders as the Court considered just in the circumstances. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 29

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Determination 79. I have carefully considered the Preliminary Objection and the submissions filed by the parties herein. The only issue for determination is whether section 77 of the County Government Act ousts the jurisdiction of this Court to determine the Petition herein. 80. Section 77 of the County Governments Act provides 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 KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 30

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person in a county government including a decision in respect of— a) recruitment, and selection, qualifications appointment attached to any office; b) remuneration and terms and conditions of service; c) disciplinary control; d) national values governance, and under principles Article 10, of and values and principles of public service under Article 232 of the Constitution; e) retirement and other removal from service; f) pension benefits, gratuity and any other terminal benefits; or g) any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 31

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3) An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of the Commission, the circumstances warrant it. 81. The 1st, 3rd and 4th Respondents and the 2nd Respondent have contended that the suit herein should be struck out as the Claimants have not exhausted the procedure provided under Section 77 of the County Government Act and therefore the suit offends the doctrine of exhaustion. 82. The 2nd Respondent argues that in addition to avoiding the process set out under section 77 of Governments Act the petition raises the County constitutional interpreta 83. The Doctrine of Exhaustion is defined in Black’s Law Dictionary 11th Edition as follows: “exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 32

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purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.” 84. In the case of Republic v National Environment Management Authority Ex parte Sound Equipment Ltd, [2011] eKLR, the Court of Appeal observed: “... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it....” KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 33

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85. In the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR, the Court observed that: “52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus: KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 34

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42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker Assembly v Karume [1992] of KLR National 21 in the procedure for following oft-repeated words: Where there is redress of any a clear particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. 43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 35

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decision which provides the Constitutional rationale and basis for the doctrine.” 59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super (supra), after Alliance exhaustively Kenya (NASA) reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 36

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Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.) 60. As observed above, the first principle is that the High Court consider, may, and in exceptional determine that circumstances the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 37

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61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR. 62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 38

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enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” 86. In the present case, the Respondents contend that the Petition concerns the recruitment and engagement of persons in the county public service. On this basis, they argue that the Petitioner ought to have first invoked the appellate jurisdiction of the Public Service Commission under section 77 of the County Governments Act and sections 85 and 86 of the Public Service Commission Act. 87. The Petitioner and the Interested Parties contest that characterisation. Their position is that the Petition does not merely challenge a recruitment or appointment process. They contend that it challenges the legality of the creation of the offices themselves, the alleged interference with the independence of the County Public Service Board, the alleged usurpation of the Board’s statutory functions and the intended expenditure of public funds on offices that were neither lawfully established nor budgeted for. 88. From the submissions of the parties, it is clear that parties have taken different positions on whether the advertised KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 39

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offices were vacant; whether the County Executive Committee authorised the creation of additional offices; whether the County Public Service Board independently approved their establishment; whether adequate budgetary provision had been made and whether the previous Board completed its lawful term or was prematurely replaced. 89. At this preliminary stage, the Court is required to proceed on the assumption that the facts pleaded by the Petitioner are correct. Whether those allegations will ultimately be proved is a matter for determination upon consideration of the evidence. The Court cannot resolve their truth or otherwise through a preliminary objection. 90. Accordingly, to the extent that the Preliminary Objection requires the Court to determine the legality of the establishment of the offices, the existence of budgetary provision, the independence of the County Public Service Board and the circumstances surrounding the replacement of the former Board, it is founded on contested matters of fact. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 40

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91. I therefore find that this aspect of the Preliminary Objection does not raise a pure point of law capable of determination without the interrogation of evidence. 92. The 2nd Respondent did not file a preliminary objection. However, its submissions, dated 16th July 2026, in addition to taking the position of the other Respondents, raise a different issue from that raised by the 1 st, 3rd and 4th Respondents in their preliminary objection and submissions. The 2nd Respondent submitted that the Petition alleges constitutional and statutory violations against the 1st Respondent which violations challenge the 1st Respondent’s exercise of constitutional and statutory powers and, therefore, fall outside the ambit of Article 162(2)(a) of the Constitution. That the preliminary objection raises questions of constitutional interpretation falling within the jurisdiction of the High Court under Article 165(3)(d)(i) and (ii) of the Constitution, relying the recent decision of the Supreme Court in Moi Teaching and Referral Hospital & 3 Others v Dr Magare Gikenyi & 76 Others, Supreme Court Petition No. KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 41

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E030 as consolidated with Petition No. E033 of 2025. 93. In the first place, this is not what is raised in the preliminary objection before the court. The issue is raised in submissions which is not a pleading. 94. Secondly, it is my view that this suit is distinguishable from the subject matter of the Supreme Court decision. In this case the Interested Parties who are employees of the Respondents are parties, albeit as Interested Parties. Further, the issues raised concern employment. The Supreme Court in its decision pointed out that “Nowhere do they plead on behalf of those who applied for the positions of CEOs or MDs and were not successful.” Further, that “The 1st to 7th Respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalisation and discrimination of women and people with disability.” 95. In the instant case the petition is pleasded on behalf of the Interested parties who have further applied and have been enjoined as parties to the petition. It is thus clear that what KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 42

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the Supreme Court decided was jurisdiction in respect of issues that do no concern employment while the instant petition relates to employment matters. 96. The Supreme Court specifically stated at paragraph 79: “The cross appeals therefore succeed to the extent explained in this judgment, that ELRC has jurisdiction to hear and determine constitutional petitions challenging the constitutionality or legality of preemployment procedures and processes such as advertisements of vacancies, shortlisting of candidates, the interview and selection processes.” 97. In the result, I find that the Preliminary Objection dated 26 June 2026 is without merit and is hereby dismissed. 98. As the Petition raises matters of public interest that remain to be determined on their merits, the appropriate order is that each party bears its costs of the Preliminary Objection. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 43

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MAUREEN ONYANGO JUDGE KTL ELRC PETITION NO. E007 OF 2026 RULING NO. 2 44

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