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ELRCDismissedNotice of Motion dated 8th February 2018 (Employment and Labour Relations Court)

Shem Okora Onywera v Kisii County Government & another [2018] KEELRC 2173 (KLR)

Employment and Labour Relations Court
12 April 2018
967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A county employee lost his case because he went to court before finishing the mandatory appeal process to the Public Service Commission.

What this practically means

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Executive summary

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This first-instance ruling by the Employment and Labour Relations Court (Mathews N. Nduma J) determined a Notice of Motion dated 8 February 2018 in which the Claimant sought a mandatory injunction reinstating him to his position as Director Operations with the County Government of Kisii on full pay and allowances, and a temporary injunction restraining the County Government and the Kisii County Public Service Board from continuing a disciplinary process founded on grounds of gross misconduct in an interdiction letter dated 12 January 2018, pending the hearing of his claim. The Respondents opposed, deposing that the claim was premature: the claimant had received a show cause letter, responded on 22 January 2018, and filed suit before the disciplinary process was concluded, without first appealing to the Public Service Commission as mandated by section 77 of the County Governments Act, 2012. They further submitted that the Board had statutory disciplinary powers under section 59 of the Act, and that the reinstatement prayer was final in nature. The court framed the maturity of the suit as a preliminary issue and held that the claimant breached a mandatory statutory procedure by failing to pursue the section 77 appeal to the Public Service Commission. Relying on the Court of Appeal decision in Speaker of the National Assembly v James Njenga Karume, as applied by Mumbi Ngugi J in James Tinai Murete v County Government of Kajiado, the court held that where a clear statutory redress procedure exists it must be strictly followed, and that the legislature could not have intended to make the dispute resolution mechanism optional. The application and the entire suit were dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the suit was premature because the claimant filed it before the disciplinary process had taken its full course
  2. 2.Whether the claimant was required to exhaust the appellate procedure under section 77 of the County Governments Act, 2012 by appealing to the Public Service Commission before approaching the court
  3. 3.Whether the mandatory and temporary injunctions sought should be granted

Key legal issues

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01

Exhaustion of statutory dispute resolution mechanisms before resorting to court

Holding

The suit was prematurely filed because the claimant did not pursue the appeal to the Public Service Commission under section 77 of the County Governments Act, 2012, before filing suit.

Reasoning

Section 77 mandates the Public Service Commission to entertain appeals against decisions of County Public Service Boards on disciplinary control and removal from service. Relying on the James Njenga Karume decision and Mumbi Ngugi J's application of it in James Tinai Murete, the court held the procedure is mandatory; the legislature could not have intended to establish a dispute resolution mechanism and render it optional.

p. 2
02

Prematurity of the suit

Holding

The claim was premature as it was filed before the disciplinary process concluded and before the claimant exercised the statutory right of appeal.

Reasoning

It was not disputed that the claimant filed suit before the disciplinary process concluded and did not follow the appellate procedure under section 77. The issues as to maturity of the suit were preliminary in nature and, once determined, disposed of the entire suit.

p. 1
03

Statutory mandate of the County Public Service Board over disciplinary control

Holding

Under section 59 of the County Governments Act, 2012, the Board has statutory power to exercise disciplinary control over and remove persons holding or acting in county offices, and rightfully exercised it by requiring the claimant to show cause.

Reasoning

The court accepted that the disciplinary powers donated by the legislature cannot be wished away by an applicant, and that internal disciplinary mechanisms legally exist and must be allowed to take their course before court intervention is sought.

p. 1

Legal principles established

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  • Where there is a clear procedure for the redress of a particular grievance prescribed by the constitution or an Act of Parliament, that procedure must be strictly followed and the court will not entertain a suit filed in breach of it.

Court orders

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  1. 1.The application and the entire suit is dismissed
  2. 2.Costs awarded to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 59 and 77 of the County Governments Act, 2012; Employment and Labour Relations Court jurisdiction over employment disputes

Relief refused

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Mandatory injunction reinstating the claimant as Director Operations on full pay and allowances

The suit was filed prematurely in violation of the mandatory statutory appellate procedure under section 77 of the County Governments Act, 2012

p. 2

Temporary injunction restraining the respondents from continuing with the disciplinary process

Prayer was final in nature and would dispose of the entire claim; the claimant had not exhausted the statutory dispute resolution mechanism

p. 1

Costs

The application and the entire suit is dismissed with costs.

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.

where there is a clear procedure for the redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed
p. 2Exhaustion of statutory remedies
Accordingly, the present case was filed prematurely before this court in violation of a mandatory statutory procedure. The application and the entire suit is dismissed with costs.
p. 2Final orders - dismissal for prematurity
There is no option given to a party to choose whether or not to file grievances with the commission.
p. 2Mandatory nature of section 77 appeals to the Public Service Commission

Issues in the judgment

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minor

The Karume appeal is cited inconsistently within the judgment - first as Civil Appeal No. 92 of 1992, then within the quoted passage as Civil Appl No. NA 192 of 1992

minor

The prayer numbering is inconsistent: the injunction against the disciplinary process is listed as prayer (b) in the application but referred to as prayer 3 in the respondents' submissions as recorded

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, "Shem Okora Onywera v Kisii County Government & another [2018] KEELRC 2173 (KLR)", Case Analysis (2018). Notice of Motion dated 8th February 2018 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2173/eng@2018-04-12

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