Tum v Public Service Board of Kericho County & 2 others; Chelangat & 11 others (Interested Parties) (Petition E014 of 2022) [2024] KEELRC 104 (KLR)
The bottom line
#The Employment Court dismissed a challenge to Kericho County's Chief Officer recruitment, ruling the petitioner should have first used statutory appeal channels 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.Is this petition properly before the court and or does this court possess the requisite jurisdiction to hear and determine this petition?
- 2.If (i) above is in the affirmative, is the petitioner deserving of the reliefs prayed for?
- 3.Costs
Key legal issues
#Jurisdiction of the ELRC over recruitment of Chief Officers before/without an employment relationship
The court lacks jurisdiction; the petitioner ought to have first exhausted the statutory mechanisms under Section 77 of the County Governments Act and Sections 85–87 of the Public Service Commission Act
Relying on the binding Court of Appeal decision in Nakuru Civil Appeal No. E136 of 2022 (consolidated with E137 of 2022), the court held ELRC has no jurisdiction where an employer-employee relationship has not crystallized. The conclusion of the recruitment process did not alter this, as exhaustion of the statutory appeal to the PSC remained mandatory. The petitioner gave no reason for bypassing that mechanism, and the Abidha Nicholus exceptions were not engaged.
Whether the two-thirds gender rule claim is justiciable before the ELRC
The issue is not properly before this court; it is a constitutional question affecting all public institutions and awaits implementing legislation
The court held the gender-rule issue is neither an employer-employee dispute within ELRC jurisdiction nor ripe for adjudication absent legislation implementing the rule. It further found no evidence that suitably qualified female or minority candidates were discriminated against in the appointments. The key to unlocking the issue lies with the Legislature, not the Judiciary.
Whether the recruitment process was challenged on the evidence
The detailed recruitment process set out by the 1st and 2nd respondents was unchallenged; no qualification or suitability of the appointees was impugned
The respondents detailed the advertisement, shortlisting, interviews, report and vetting. The petitioner filed no evidential rebuttal and raised no objection to any appointee's qualifications or suitability, only the gender imbalance. The court therefore assumed the respondents' evidence to be unchallenged.
Legal principles established
#- Jurisdiction is everything; once lacking, a court must down its tools
- ELRC has no jurisdiction over recruitment disputes where an employer-employee relationship has neither crystallized nor been created, and statutory remedies must be exhausted
- The two-thirds gender rule is to be realized gradually and progressively absent implementing legislation
Court orders
#- 1.The petition is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act
Relief refused
#Declarations that the recruitment and appointment of the Chief Officers was unconstitutional, null and void ab initio
The court lacked jurisdiction; the petitioner did not exhaust the statutory mechanisms under Section 77 of the County Governments Act and Sections 85, 86 & 87 of the Public Service Commission Act
Declarations of violation of Articles 10, 35, 73, 232 and Section 65 of the County Government Act
Not addressed on the merits for want of jurisdiction
Order compelling the 1st Respondent to restart the recruitment on a two-thirds gender-compliant basis
The two-thirds gender rule issue is not properly before the ELRC and there is no legislation implementing the rule; no evidence suitably qualified female or minority candidates were discriminated against
Costs of the petition borne by the Respondents
The petition was public-spirited litigation
Costs
No orders 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.
jurisdiction is everything and a court that indulges in a matter without jurisdiction labours in vain
In this regard the court finds and holds that it lacks the jurisdiction to entertain this petition based on the doctrine of exhaustion
this court lacks the jurisdiction to deal with the matter as the same is purely not an employment and labour relations matter but a constitutional issue afiecting all public institutions
Flowing from the foregoing and in disposal of this petition the same is hereby dismissed with no orders as to costs.
Issues in the judgment
#Judgment prints Constitution article numbers without the word 'Articles' before the list in places and renders the word 'affecting'/'offends' with typographical errors ('afiecting', 'ofiends')
The respondents relied on a consent in Cherotich Khatherine (ELRC Petition No. E013 of 2022) declaring the same recruitment lawful, but the judgment does not state why res judicata was not separately determined; the matter was disposed of on jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tum v Public Service Board of Kericho County & 2 others; Chelangat & 11 others (Interested Parties) (Petition E014 of 2022) [2024] KEELRC 104 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/104/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.