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Court of AppealDismissedNot stated in the judgment

Mwirabua & another v Governor of Meru County & another (Civil Appeal 305 of 2019) [2026] KECA 354 (KLR)

Court of Appeal
27 February 2026
1,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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County government employees in Kenya must first appeal to the Public Service Commission under section 77 before suing in court over their employment.

What this practically means

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Executive summary

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The appellants, former Chief Officers of the Meru County Government engaged by letters of appointment dated 25th September 2013, sued the Governor and the County Government in the Employment and Labour Relations Court at Meru, alleging that being compelled to proceed on indefinite leave in August 2017 and having their positions advertised and filled constituted constructive termination in breach of five-year contracts, contrary to sections 43 and 45 of the Employment Act and articles 41 and 47 of the Constitution. They sought declarations, payment of salary and emoluments for the full contractual term, punitive damages, and certificates of service. Nzioki wa Makau, J, by judgment of 7th February 2019, dismissed the consolidated claims as premature, holding that as county public officers the appellants were obliged under section 77 of the County Governments Act to appeal to the Public Service Commission before resorting to court, and ordered each party to bear its own costs. On appeal to the Court of Appeal at Nyeri (W. Karanja, Jamila Mohammed and A. O. Muchelule, JJA), the appellants argued that section 77 applied only to disciplinary decisions by the County Public Service Board, not to breach-of-contract claims, and that the Governor acted ultra vires. The respondents relied on the exhaustion doctrine, citing Secretary, County Public Service Board v Hulbhai Gedi Abdille. The Court of Appeal held that section 77 establishes a comprehensive appellate mechanism to the Public Service Commission covering appointment, terms of service, removal and terminal benefits, and that the appellants' claims fell squarely within it. Absent exceptional circumstances, the ELRC did not err in declining jurisdiction. The appeal was dismissed with costs to the respondents, affirming the decision below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants’ claims were premature for failure to comply with section 77 of the County Governments Act
  2. 2.Whether the appellants’ termination was unlawful and what remedies, if any, they are entitled to

Key legal issues

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01

Whether section 77 of the County Governments Act applied to the appellants' claims for breach of contract and unfair termination

Holding

Yes. The appellants' claims were anchored on their appointment as Chief Officers, the terms of their service and their alleged removal from office, all matters expressly covered by section 77; they were therefore required to appeal to the Public Service Commission before moving the court.

Reasoning

The court construed section 77 and found it establishes a comprehensive appellate mechanism covering appointment, remuneration, terms and conditions of service, disciplinary control, removal from service and terminal benefits. Because the appellants' pleaded reliefs revolved around appointment, terms of service and removal, the claims fell squarely within the section. The exhaustion doctrine required them to pursue the Commission first, and no exceptional circumstances excused non-compliance. The ELRC therefore did not err in holding it lacked jurisdiction.

p. 5
02

Whether the ELRC erred in dismissing the claims as premature

Holding

No. The ELRC correctly held that it lacked jurisdiction because the statutory appellate procedure under section 77 had not been exhausted and no exceptional circumstances were demonstrated.

Reasoning

Relying on the exhaustion doctrine as pronounced in Secretary, County Public Service Board v Hulbhai Gedi Abdille and Speaker of National Assembly v James Njenga Karume, the court held that where there exists a sufficient and adequate alternative forum, a party must pursue it before invoking the court process. In the absence of demonstrated exceptional circumstances, the ELRC did not err in declining jurisdiction for prematurity.

p. 5
03

Whether the appellants' termination was unlawful and what remedies were due

Holding

The court did not reach the merits; because the claims were premature, no finding on the lawfulness of termination or remedies was made.

Reasoning

The second issue framed by the court (lawfulness of termination and remedies) was only conditionally before the court. Having upheld the prematurity finding on the first issue, the court dismissed the appeal without making any determination on the contractual term, constructive termination, or the reliefs claimed.

p. 5

Legal principles established

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  • Where a statute provides a clear and efficacious dispute resolution mechanism, that mechanism must be exhausted before recourse is had to the courts, absent exceptional circumstances
  • Section 77 of the County Governments Act establishes a comprehensive appellate mechanism to the Public Service Commission covering appointment, terms and conditions of service, disciplinary control, removal from service and terminal benefits of county public officers

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Meru
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (rule 31(1) of the Court of Appeal Rules, 2022 invoked); appeal from the ELRC

Relief refused

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Setting aside of the ELRC judgment and grant of the appellants' claims (declarations, salary and terminal benefits for the full five-year term, punitive and exemplary damages, certificates of service)

The claims fell within the appellate jurisdiction of the Public Service Commission under section 77 of the County Governments Act and had to be exhausted first; no exceptional circumstances were demonstrated

p. 5

Costs

Appeal dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Time and again, it has been said that where there exists other suficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and efiectively be dealt with in that other forum
p. 5Exhaustion of statutory dispute resolution mechanisms
The appellants’ claims before the ELRC were anchored on their appointment as Chief Oficers, the terms of their service, and their alleged removal from ofice. These matters fall squarely within the ambit of section 77 of the Act.
p. 5Scope of section 77 of the County Governments Act
In the absence of any demonstrated exceptional circumstances, we are satisfied that the ELRC did not err in holding that it lacked jurisdiction to entertain the appellants’ claims for failure to exhaust the statutory appellate procedure under section 77 of the Act.
p. 5No exceptional circumstances excusing non-exhaustion
Accordingly, we find no merit in the appeal and dismiss it with costs to the respondents.
p. 5Final orders - dismissal with costs

Issues in the judgment

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minor

The case name is printed inconsistently within the judgment: it appears as 'The Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR' in the submissions section but as 'Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] KECA 643 KLR' in the determination, and the citation paragraph contains a grammatical irregularity

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwirabua & another v Governor of Meru County & another (Civil Appeal 305 of 2019) [2026] KECA 354 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/354/eng@2026-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.