Charles Gitonga Kibaara v Tharaka Nithi County Government & another [2019] KEELRC 2019 (KLR)
The bottom line
#A county employee's unfair dismissal claim failed because he skipped the mandatory appeal to the Public Service Commission before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's termination was unfair
- 2.Whether the Claimant held an illegal and fraudulent contract of employment
- 3.Whether the Claimant was required to first appeal to the Public Service Commission under Section 77 of the County Governments Act before approaching the Court
Key legal issues
#Exhaustion of statutory dispute-resolution mechanisms
The claim was dismissed because the Claimant ought to have appealed to the Public Service Commission under Section 77 of the County Governments Act instead of filing suit
The court relied on James Tinai Murete and Republic v Secretary County Public Service Board ex parte Hulbai Gedi Abdille for the settled principle that where a statute prescribes a procedure for redress, a litigant cannot choose which parts of the statute to follow. The Respondents had also invoked Speaker of the National Assembly v James Njenga Karume for the same proposition. The court concluded the suit was only fit for dismissal and made no order as to costs.
Legality of the employment contract
The Respondent contended, and its witness testified, that the Claimant's contract was illegal because it was not preceded by advertisement, interview and appointment by the 2nd Respondent, rendering it a nullity
The Respondents' defence relied on Macfoy v United Africa Company Ltd for the proposition that a void act is a nullity, supported by Nabro Properties v Sky Structures and Mapis Investments v Kenya Railways, and by Chesire, Fifoot & Furmson's Law of Contract on illegal agreements. The Respondents' witness testified there was no record of application, acceptance or interview. The court did not make express findings on this issue, deciding instead on the exhaustion point.
Legal principles established
#- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
Court orders
#- 1.Dismissal of the Claimant's suit
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act 2007
Relief refused
#Declaration that dismissal was unfair
The court held the Claimant should have followed the statutory appeal route to the Public Service Commission
General damages for unfair dismissal and other dues
Claim dismissed; the court found the prescribed statutory procedure had not been followed
Costs of the suit
The court made no order as to costs
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#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.
The Claimant should have approached the Public Service Commission in terms of Section 77 of the County Governments Act. In my view the suit is only fit for dismissal. I make no order as to costs.
Issues in the judgment
#The judgment does not state the case number or neutral citation, and party names are only referred to generically as 'Claimant' and 'Respondents'
The judgment adopts the statutory exhaustion doctrine despite the claim being an unfair termination claim under the Employment Act, without addressing the tension between the two statutory regimes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Gitonga Kibaara v Tharaka Nithi County Government & another [2019] KEELRC 2019 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2019/eng@2019-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.