Collins Agutu Odhiambo v The Secretary, County Public Service Board of Homa Bay & 2 others

234(i) of the Constitution, section 87(2) of the Public Service Commission Act and section 77 of the County Governments Act. they therefore urge the Court to strike it out with costs. 2. In opposition to the Preliminary Objection, the Claimant filed grounds of opposition dated 29th July 2026. He contends that the Preliminary Objection invites the Court to determine contested facts concerning computation and payment of gratuity hence it does not meet the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He asserts that the doctrine of exhaustion is inapplicable because this claim is founded on the Respondent’s admitted failure to pay already computed gratuity. The Claimant maintains that this claim is not an appeal against any decision relating to recruitment, confirmation, promotion, discipline, removal from office or any other employment decision contemplated under Article 234 of the Constitution, section 77 of the County Governments Act and section 87 of the Public Service Commission Act. Moreover, the Claimant contends that the Public Service Commission lacks jurisdiction to enforce Page 2 of 12

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payment of an admitted contractual debt or gratuity. On the other hand, he avers that this Court has original and exclusive jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. Consequently, the Claimant urges the Court to dismiss the Preliminary Objection with costs. 3. The Preliminary Objection was canvassed by way of written submissions. Respondents’ Submissions 4. The Respondent identifies the following issues the meets the determination of which will dispose of the suit: (a) Whether the Preliminary Objection threshold established in law; (b) Whether this Honourable Court has jurisdiction to hear and determine the suit; (c) Whether the Claimant has exhausted alternative dispute resolution mechanisms as required under the law; and Page 3 of 12

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(d) Whether the Claimant’s suit is fatally defective and an abuse of the court process. 5. On whether the Preliminary Objection meets the lawful threshold, the Respondents submit that it does. Citing Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, they assert that it raises pure points of law concerning the Court’s jurisdiction and the Claimant’s failure to comply with mandatory statutory dispute resolution procedures. Moreover, they contend that the Preliminary Objection is founded on undisputed statutory provisions and, if upheld, would dispose of the suit in limine. 6. On the Court’s jurisdiction, they submit that the Claimant’s grievance arises from his tenure as a member of the County Public Service Board hence it falls within the appellate jurisdiction of the Public Service Commission. In support, they rely on Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the proposition that jurisdiction Page 4 of 12

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is conferred by the Constitution or statute and cannot be assumed by the Court. 7. On exhaustion of alternative mechanisms under the law, they reiterate that the procedure under section 77(1) of the County Governments Act and section 87 (2) of the Public Service Commission Act, has not been adhered to. Relying on Speaker of the National Assembly v Karume [2008] eKLR and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, they emphasize that where a statutory dispute-resolution mechanism exists, it ought to be followed before the Court is approached. The Respondents maintain that the Claimant has not produced evidence of filing an appeal before the Commission neither has he demonstrated that the appeal was unavailable, ineffective or unfair. 8. On the suit constituting an abuse of the court process, the Respondents submit that the suit is fatally defective. They assert that the non-compliance with the laid out statutory dispute resolution mechanism renders the suit incompetent. They rely on Republic v National Environment Tribunal Page 5 of 12

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Ex Parte Overlook Management Ltd [2019] eKLR, for the proposition proceedings filed that in the Court disregard of should not entertain prescribed statutory procedures. They consequently urge the Court to uphold the Preliminary Objection. Claimant’s Submissions 9. The Claimant submits that the Preliminary Objection does not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because its determination requires an examination of contested factual and evidentiary matters. He points to the fact that the Respondents computed his gratuity at Kshs 3,749,760/- and the Respondents have not denied or sought to reduce the same. He asserts that issues surrounding the contract, the computation, the entity that made it and its legal effect and whether any subsequent adverse decision exists are tied to evidence. 10. As concerns whether the claim required prior exhaustion of the PSC process, the Claimant submits that this claim does not fall within the category of disputes requiring prior recourse to the Public Service Commission under section 77 Page 6 of 12

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of the County Governments Act. He contends that section 77 applies to persons dissatisfied with a decision of the County Public Service Board or an officer exercising disciplinary control, whereas his claim does not challenge recruitment, appointment, discipline, dismissal, retirement or any decision denying gratuity. He draws attention to the fact that this claim concerns non-payment of an accrued and quantified contractual entitlement rather than an appeal against an adverse administrative decision. He stresses that the mere fact that section 77(2)(f) refers to gratuity does not mean that every claim for unpaid gratuity must first be presented to the PSC, particularly where no appealable decision has been identified. 11. As for whether the PSC is capable of granting the relief sought, he asserts that it is not. The Claimant asserts that the Respondents have not demonstrated that the PSC can meaningfully determine or enforce the specific monetary obligation pleaded. He further maintains that whether the gratuity computation constituted an approval, acknowledgment or determination of liability is a matter requiring evidence and should Page 7 of 12 not be conclusively

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determined through a preliminary objection. He asserts that the applicability of the exhaustion doctrine does not merely depend on the existence of an alternative statutory mechanism, but also on the nature of the grievance, the decision challenged, the powers of the alternative forum and the remedies sought. He relies on Kenya County Government Workers Union v County Government of Bomet & another [2024] KEELRC 430 (KLR) and Robert Khamala & 8 others v Acting Clerk of the Nairobi City County Assembly [2023] eKLR in support of a contextual application of the doctrine. 12. With respect to the authorities relied upon by the Respondents, he submits that they are distinguishable, because they concern recruitment, disciplinary action, dismissal, appointment and other identifiable employment decisions, while the present suit merely concerns computed gratuity. He specifically draws attention to the fact that, Mwirabua & another v Governor of Meru County & another [2026] KECA 354 (KLR) concerned constructive termination, compulsory leave and replacement, while Otieno & 3 others v Governor, Homa Bay County Page 8 of 12

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Government & 2 others; Odhiambo (Interested Party) [2025] KEELRC 2641 (KLR) concerned dismissal. He further points to Republic v National Environment Tribunal Ex Parte Overlook Management Ltd [2019] eKLR, which he contends does not establish that failure to invoke an alternative procedure automatically warrants striking out, since the Court must first determine whether that procedure applies to the particular cause of action and can grant the relief sought. 13. As for whether the suit is an abuse of process and liable to be struck out, The Claimant submits that the suit is neither frivolous nor an abuse of the Court process. He asserts that he has pleaded a contractual entitlement, relies on an official computation of the gratuity, made follow ups and issued a demand before instituting the proceedings. He contends that, at most, the dispute concerns the appropriate procedural forum, which does not, without more, constitute abuse of process. The Claimant further submits that striking out is a drastic remedy which should be exercised cautiously where a substantive employment claim is supported by a written contract and documentary evidence of computation Page 9 of 12

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and non-payment. He maintains that the Court should determine the applicability of the exhaustion doctrine to the actual cause of action rather than summarily terminate the claim merely because section 77 provides an appellate mechanism. In conclusion, the Claimant submits that the Respondents have not identified an adverse decision against which he was required to appeal, nor demonstrated that the PSC can meaningfully determine the claim as pleaded, namely enforcement of an already quantified contractual terminal benefit. He therefore urges the Court to dismiss the Preliminary Objection, find that the suit is properly before it and allow the claim to proceed to hearing. In the alternative, he prays that the proceedings be stayed for a reasonable period to enable him to pursue the statutory process, rather than striking out the suit. He also seeks costs of the Preliminary Objection. Disposition 14. The objection taken must be in line with the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra) where the Court of Appeal Page 10 of 12

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demarcated what qualifies as a preliminary objection. In the case, the Court held per Spry VP that: “So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. Further in the same judgment, Sir Charles Newbold, JA stated that:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection is deprecated. [Emphasis supplied] Page 11 of 12

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15. The preliminary objection cannot be raised where the facts are to be ascertained. In this case, the computation is a fact that has to be ascertained and in my view the Respondents have jumped the gun by raising an objection at this stage. The preliminary objection taken is misplaced and will not lead to determination of the matter in limine. Objection is dismissed with costs to the Claimant. Directions will follow this Ruling on the steps towards final disposal of the claim. It is so ordered. Dated and delivered at Kisumu this 30th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 12 of 12

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