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ELRCDismissedNot stated in the judgment as provided

Issack Mohamed Alio v Mandera County Public Service Board & 3 others [2021] KEELRC 1472 (KLR)

Employment and Labour Relations Court
18 February 2021
840 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled it cannot extend time for appeals to Kenya's Public Service Commission — that power belongs to the Commission alone.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent as County Communication Officer on 10th July 2014, brought a Notice of Motion dated 16th December 2020 seeking leave to lodge an appeal out of time with the Public Service Commission (2nd respondent) and a stay of the court proceedings pending that appeal. The claimant's salary was stopped and he suspended from employment on 19th September 2017 following a staff audit task force constituted while he was on annual leave; he filed the unfair termination suit before lodging the statutorily required appeal, which he attributed to his advocates' mistake. The respondents opposed through Grounds of Opposition, arguing the application abused court process, circumvented statutory timelines under section 77(3) of the County Government Act and section 86(2) of the Public Service Commission Act, and was filed after an inordinate, unexplained delay of about three years. The court framed the question as whether it could grant leave for an out-of-time appeal to the Commission. Relying on section 86 of the Public Service Commission Act, which requires appeals within 90 days with the Commission itself empowered to extend time, the court held that it has no jurisdiction over a constitutional commission to exercise that extension mandate, and the claimant had shown no prior engagement with the Commission. The application was dismissed in its entirety with costs to the respondents, delivered at Nairobi on 18th February 2021.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to grant leave to lodge an appeal out of time with the Public Service Commission
  2. 2.Whether the proceedings before the court should be stayed pending the determination of an appeal before the Public Service Commission

Key legal issues

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01

Whether the court can grant leave to file an appeal out of time to the Public Service Commission

Holding

The court cannot; the power to consider an appeal out of time lies with the Commission itself under the proviso to section 86(2) of the Public Service Commission Act.

Reasoning

Section 86 of the Public Service Commission Act requires appeals to be lodged within 90 days of the decision, with the Commission empowered to entertain out-of-time appeals where circumstances warrant. The court held the 2nd respondent is a constitutional commission and neither the Constitution nor any statute confers on the court jurisdiction to exercise that extension mandate on its behalf. The claimant also showed no prior attempt to engage the Commission that had been denied.

p. 2
02

Whether stay of proceedings should issue pending the purported appeal

Holding

Stay was contingent on obtaining leave to appeal out of time, which having been refused, stay could not issue and the application was dismissed.

Reasoning

The court accepted that a stay may be allowed for good reason where a party requires it, but the only reason advanced was to enable an out-of-time appeal to the Commission. Since the court lacked jurisdiction to grant the leave sought, the foundation for the stay fell away and the application was dismissed in its entirety with costs to the respondents.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court has no jurisdiction to extend time for lodging an appeal to the Public Service Commission, a constitutional commission, as that mandate rests with the Commission itself under section 86 of the Public Service Commission Act.

Court orders

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  1. 1.Application dated 16th December, 2020 dismissed
  2. 2.Costs 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
Employment and Labour Relations Court jurisdiction; the court held it lacked power to extend time for appeals to the Public Service Commission under section 86 of the Public Service Commission Act

Relief refused

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Leave to lodge appeal out of time with the Public Service Commission

The court lacked jurisdiction over a constitutional commission's mandate to extend time; no effort to engage the Commission had been shown

p. 2

Stay of proceedings pending appeal before the Public Service Commission

Stay could only be allowed for good reason, namely obtaining leave to appeal out of time, which was refused

p. 2

Costs

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.

The constitution and the law have no provisions allowing this court jurisdiction over a constitutional commission to extend time and its mandate to allow an appeal out of time.
p. 2Jurisdiction over constitutional commission
The orders sought, which relates to the mandate of a constitutional commission and the 2nd respondent to extend time to appeal out of time is denied of this court. Such mandate does not exist in law or under the constitution.
p. 2Refusal of extension of time mandate
Accordingly, application dated 16th December, 2010 is hereby dismissed. Costs to the respondents.
p. 2Final orders and costs

Issues in the judgment

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minor

Judgment states the application is dated 16th December, 2020 at the outset but the final order refers to an 'application dated 16th December, 2010', an apparent typographical discrepancy

minor

The judge's name as printed appears incomplete or corrupted in the delivery record

minor

The judgment refers to 'section 86 of the Public Service Act' although the context and quoted provisions concern the Public Service Commission Act

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, "Issack Mohamed Alio v Mandera County Public Service Board & 3 others [2021] KEELRC 1472 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1472/eng@2021-02-18

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