Edwin Situma Samita v Governor Bungoma County & 3 others

2. A declaration that the 3rd Respondent’s purported appointments of other staff to replace the Claimants are unconstitutional as the same offends the provisions Constitution and the Laws. 3. An order of quashing the Notices and the Memo stopping the Claimants from continuing with their employment. 4. That an Order of reinstatement of the Claimants to their positions on such terms as the court deems fit. 5. Costs of the suit. 6. Any other award that the court deems fit and just. 1.The Respondents entered appearance through the Office of the County Attorney and filed a Notice of Preliminary Objection (PO) dated 12th February 2026. The PO is premised on the grounds that – 1. THAT the claim filed herein is incompetent, incurably defective and in bad law and offends the clear mandatory provisions of law both in form and substance; 2. THAT this Court has no jurisdiction to hear and determine this claim by fiat of Section 77 of the County Governments Act 2012 and Sections 85, 86(1) and 87(2) of the Public Service Commission Act, 2017 as the Claimant has not exhausted the remedies laid thereat; 3. THAT where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 2 OF 9

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Parliament, that procedure ought to be strictly followed and not bypass those institutions and fora for resolution of those disputes; 4. THAT pursuant to Section 5 as read together with Section 6 of the County Governments Act, 2012 the Claimant is non - suited against the Respondents as it is the County Government/County Public Service Board, which the County Government is not a party to these proceedings, that has to initiate employment process and allocate funds subject of this suit; 5. THAT the Claimant’s attempt to sue the County Public Service Board and non – joinder of the County Government, a Constitutional body mandated under Article 235 of the Constitution, 2010 to appoint persons to hold or act in offices, and confirming the appointments which is subject of these proceedings renders the claim herein dead-on arrival; 6. THAT the Claimant has deliberately chosen not to appreciate the Constitutional powers vested in the County Government at Article 235(1) of the Constitution of Kenya, 2010 and the imperatives of Article 183 of the Constitution, 2010. 7. THAT the purported 1st, 2nd and 4th Respondents are improperly joined as parties to these proceedings not being the Claimant’s employer that initiated the process the subject of these proceedings and who ought and cannot, by dint of Section 133 of the County Government Act, 2012, be sued in their personal capacities. ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 3 OF 9

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8. THAT the purported Respondents are non–existing parties as there are no such parties capable of being sued or suing. 9. THAT the purported 1st, 2nd and 4th Respondents have been sued directly in their own personal capacities as officers which is against statutory laws and principles of natural justice to sue persons in their personal capacities merely for discharging their official public mandate vested in the County Government of Bungoma and therefore, their names ought to be struck off and/or the Claim against them is struck out. 10. THAT the suit has been brought in bad faith and solely aimed at vexing the Respondents. 3.The Respondents also filed a memorandum of response to the claim dated 12th February 2026. 4.When the matter came up for directions on 2nd March 2026, the Court directed that the PO be canvassed in advance by way of written submissions. Ms Owuor for the Claimant filed written submissions dated 15th April 2026 while Ms. Walaka for the Respondents filed written submissions dated 6th March 2026. 5.In support of the PO Counsel of the Respondent submitted on the following issues – Non-joinder of proper party; Joinder of nonparties; Failure to exercise the doctrine of exhaustion; and, Who should bear the costs of the claim. ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 4 OF 9

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6.On the issue of non-joinder, Counsel for the Respondents submitted that the County Government of Bungoma as established under Articles 176 & 179 of the Constitution and constituted under Sections 5 and 6 of the County Governments Act, is the proper party responsible for county functions including employment and allocation of funds. It was argued that the Claimant failed to join the County Government of Bungoma despite the fact that the dispute concerned employment and the County Government is the employer. Consequently, it was submitted that the claim is incurably defective. 7.On the issue of misjoinder, Counsel for the Respondents argued that the 1st, 2nd & 4th Respondents are merely officials/employees of the County Government of Bungoma and are not the employer. Relying on Section133 of the County Governments Act, it was submitted that such officers are protected from personal civil liability for acts done in good faith in the execution of their duties. It was therefore submitted that any liability arising from execution of their official functions lies with the County Government of Bungoma. 8.Counsel further submitted that the Claimant failed to exhaust the review and appeal mechanism under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, before approaching the Court. Citing Oliver Mukhebi & 28 others v County Public Service Board of Bungoma & Another (2022) eKLR, it was argued that the jurisdiction of the ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 5 OF 9

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Court was prematurely. The Court was thus urged to uphold the PO and strike out both the application and the claim with costs. II.SUBMISSIONS 9. Counsel for the Claimant identified the issues of determination asWhether the Respondents are properly enjoined in the suit; and Whether the Claimant has exhausted the internally available avenues and remedies. 10. On the first issue, Counsel submitted that based on Article 159(2)(d) of the Constitution, justice shall be administered without undue regard to procedural technicalities. It was further submitted that Order 1, Rule 6, 7 & 9 of the Civil Procedure Rules, the Respondents were properly joined in the cause. 11. On the second issue, Counsel for the Claimant submitted that the Public Service Commission (PSC) lacked jurisdiction over the matter as the Claimant was not yet an employee of the County Government of Bungoma. It was argued that the cause was filed to preserve the status quo, since the appeal process to the PSC was lengthy and provided for no interim reliefs. Counsel therefore urged the court to dismiss the PO and consider the cause on merits. III. ISSUES OF DETERMINATION 12. The factual background to the PO has been set out by Counsel for the parties as per the summary in the preceding parts of this ruling. The ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 6 OF 9

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gist of the PO is that the issues raised in the claim belong to an appeal before the PSC pursuant to Section 77 of the County Governments Act. 13. Upon the Court considering the contents of the PO and the submission by Counsel for both sides, the following issues are for determinationa. Whether this Court has the jurisdiction to entertain the claim. b. Costs. 14. Jurisdiction is a cardinal pre-requisite in the ability of a court to legally resolve a dispute. – see Owner’s of Motor Vessel’ Lillian S” v Caltex Oil Kenya Limited (1989) eKLR. 15. The jurisdiction of this Court (ELRC) as expounded in Section 12 of the Employment and Labour Relations Court Act confirms that the issue(s) raised by the Claimant are outside the purview and the jurisdiction of this court for the reasons below. 16. The court finds and holds that the application and the claim are incompetent and improperly before the court for the reasons stated above. 17. Firstly, the Claimant alleged and pleaded that he filed the cause on his own behalf and on behalf of other 65 persons. The said other claimants have not been names in the Memorandum of Claim and it has not been pleaded and or explained why they could not file the claim and participate in the proceedings as individuals with the legal ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 7 OF 9

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capacity to sue and be sued. The alleged authority to the Claimant to file the claim was not availed in court in hard copy as demanded by Rule 24 of the Employment and Labour Relations Court (Procedure) Rules 2024. On that ground alone the claim is incompetent and improperly filed. 18. It is important to distinguish a cause from a petition. 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. No such reason has been advanced by the Claimant and this renders the claim defective and incompetent. 19. Secondly, the Claimant is complaining of pre-employment procedures concerning the shortlisting, interviewing, and appointment into new positions for casual employees. In my considered view, 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 under Section 77 of the Public Service Commission Act. 20. Although joinder and or non-joinder should not defeat a claim, the County Government of Bungoma is the ultimate employer and its ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 8 OF 9

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non-joinder in the claim may ultimately fail to resolve the dispute. A court should not issue orders in futility. IV.ORDERS a) The Preliminary Objection dated 6th March 2026 by the Respondent has merit and is hereby allowed. b) Consequently, the claim dated 27th January 2025 is hereby struck out for the reasons stated above. c) There shall be no order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 1ST DAY OF OCTOBER, 2026. …………………………………… DAVID NDERITU JUDGE ELRC BUNGOMA CLAIM NO. E003 OF 2025 RULING PAGE 9 OF 9

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