Patrick Kariithi Wahome & 114 others v County Government of Laikipia & another; Transitional Authority & another (Interested Parties) [2020] KEELRC 969 (KLR)
The bottom line
#Kenya's Employment Court ruled that county employees fired without notice can sue directly without first appealing to the Public Service Commission.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on the application of section 77(2) of the County Government Act, the court has jurisdiction to hear and determine the dispute herein, having regard to the doctrine of exhaustion and the appellate jurisdiction of the Public Service Commission
- 2.Whether the preliminary objections raised six years into the suit, after the claimants had testified and the defence was due, should be entertained
Key legal issues
#Whether section 77(2) of the County Government Act ousts the court's jurisdiction in favour of the Public Service Commission's appellate jurisdiction
No. Section 77(2) is permissive and must be read with section 77(1); where there was no decision by the County Public Service Board or internal disciplinary process to appeal against, the claimants could properly come to the ELRC, whose constitutional and statutory jurisdiction cannot be ousted by statute.
The court read sections 77(1) and 77(2) of the County Government Act holistically, noting Parliament's deliberate use of 'may'. The appeal mechanism presupposes a decision of the County Public Service Board or a person exercising disciplinary control. Here termination was oral and without notice, denying the claimants any shop-floor hearing or appealable decision. The court's jurisdiction under Article 162(2)(a), section 12 of the ELRC Act and section 87 of the Employment Act is original and cannot be removed by statute or conferred on a tribunal.
Whether the doctrine of exhaustion required the claimants to go to the Public Service Commission first
The doctrine did not apply on these facts; the procedure and remedies under section 77 do not oust or restrict the court's jurisdiction, and the Commission could only vary decisions the Board itself could have made.
Relying on Abdikadir Suleiman v County Government of Isiolo, the court held that the Commission on appeal can only make or vary decisions within the Board's jurisdiction, and questions of the legality or legitimacy of disciplinary procedure are issues of law reserved for the court. Following Hulbhai Gedi Abdille on exhaustion, the court distinguished it: exceptional circumstances and, more fundamentally, the absence of any appealable Board decision here meant the statutory appellate route was never available to the claimants.
Whether the preliminary objections, raised six years after filing suit, were properly before the court
The inordinate delay in raising the objections weighed against the respondents; objections should be raised instantly and a party who files a defence then waits six years comes to court with unclean hands.
The respondents filed their defence on 18th December 2013 and only filed preliminary objections on 13th August 2019, after the claimants had testified and the matter was awaiting defence hearing. Invoking the principle that jurisdictional questions should be raised at the earliest opportunity, the court held the respondents' conduct was an afterthought amounting to unclean hands, reinforcing dismissal of the objections.
Legal principles established
#- The constitutional and statutory jurisdiction of the Employment and Labour Relations Court cannot be removed and conferred on a tribunal or quasi-judicial body; a statute cannot oust jurisdiction conferred by the Constitution.
- Section 77(2) of the County Government Act is permissive ('may'), and where an employer terminates employment suo moto without notice, the employee is at liberty to move the court directly under Article 162(2)(a) and section 12 of the ELRC Act.
- Preliminary objections ought to be raised at the earliest opportunity; a party who files a defence and waits six years before raising jurisdiction objections comes to court with unclean hands.
Court orders
#- 1.The respondents' preliminary objections filed on 13th August, 2019 are found without merit and dismissed
- 2.Costs of the objections awarded to the claimants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) and (3) as read with Article 165(5) and (6) of the Constitution; section 12 of the Employment and Labour Relations Act, 2011; section 87 of the Employment Act, 2007
Relief refused
#Claimants' suit struck out for failure to exhaust the appeal procedure under section 77(2) of the County Government Act
The court found it had original jurisdiction over the employment dispute and that section 77(2), being permissive ('may'), did not oust the court's jurisdiction, particularly where termination was effected without notice or a hearing at the shop floor.
Costs
Objections dismissed with costs to the claimants
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.
The constitutional and statutory jurisdiction of the court cannot be removed and conferred to a tribunal or other quasi-judicial body.
Where the employer suo moto and without any written notice proceeds to terminate employment, such employer effectively removes the employee from the shop floor and the employee is left at liberty to urge his/her rights under the provisions of article 162(2) (a) read together with section 12 of the Employment and Labour Relations Court Act, 2011 and section 87 of the Employment Act, 2007.
A statute cannot oust the court jurisdiction conferred under and by the constitution. this court has jurisdiction to hear and determine the dispute herein.
Accordingly, objections by the respondents filed on 13 th August, 2019 are found without merit and hereby dismissed with costs to the claimants.
Issues in the judgment
#The respondents are inconsistently described in the judgment: the objections allege 'unlawful retirement ad removal from office' while the claim sought a declaration of unlawful termination of employment and reinstatement.
The respondents' submissions assert the remedy sought was damages, but the Memorandum of Claim reproduced in the judgment seeks reinstatement, declaration, salary arrears and a permanent injunction, with no claim for damages.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kariithi Wahome & 114 others v County Government of Laikipia & another; Transitional Authority & another (Interested Parties) [2020] KEELRC 969 (KLR)", Case Analysis (2020). Not stated in judgment (suit filed 4th November, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/969/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.