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ELRCStruck OutNot stated in the judgment

Githinji v County Government of Tharaka Nithi (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2754 (KLR)

Employment and Labour Relations Court
8 November 2024
OMONESMUS N MAKAU
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A county employee fired for misconduct must appeal to the Public Service Commission first, or the Employment Court will strike out the case as premature.

What this practically means

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Executive summary

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The Claimant, dismissed by the Tharaka Nithi County Public Service Board on 30th August 2023 for gross misconduct including desertion, negligence and insubordination, sued alleging unfair and wrongful termination without a hearing. He sought a declaration of unfair termination, twelve months' salary as compensation, general damages for defamation, notice pay, salary arrears, unpaid leave days, orders compelling remittance of PAYE and settlement of Sacco and bank loan deductions, costs and interest. The Respondent filed a Notice of Preliminary Objection contending the Court lacked jurisdiction because the Claimant had not exhausted the internal appeal to the Public Service Commission under section 77 of the County Governments Act and section 86 of the PSC Act, relying on the exhaustion doctrine under Article 159(2)(c) of the Constitution and section 9(2) of the Fair Administrative Actions Act. The Claimant argued the ELRC had exclusive jurisdiction under section 87 of the Employment Act, that the PSC could not award the compensation he sought, and that exceptional circumstances (including reputational harm) justified court intervention. The Court found that the statutory appeal mechanism is mandatory, that section 87(2) of the PSC Act bars court proceedings before exhaustion, and that the Claimant had been accorded hearings but filed suit instead of appealing. Finding no exceptional circumstances demonstrated, the Court upheld the Preliminary Objection, declined jurisdiction, struck out the suit as premature, and awarded costs to the Respondent.

Questions the Court framed

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

  1. 1.Whether this Court lacks jurisdiction to hear and determine the suit before the appeal mechanism provided under section 77 of the County Government Act has been exhausted

Key legal issues

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01

Jurisdiction where statutory appeal mechanism unexhausted

Holding

The Court declined jurisdiction and struck out the suit as premature because the claimant did not appeal to the PSC under section 77 of the County Governments Act before filing suit, and no exceptional circumstances were demonstrated

Reasoning

Section 77 of the County Governments Act and sections 85, 86 and 87 of the PSC Act prescribe a mandatory appeal process to the Public Service Commission for county public officers aggrieved by disciplinary decisions. Section 87(2) of the PSC Act bars filing proceedings in court before that procedure is exhausted. Section 9(2) of the Fair Administrative Actions Act reinforces exhaustion. The claimant was heard by the CHRAC and by the CPSB (in his absence after citing short notice), and filed suit instead of appealing. No exceptional circumstance justified bypassing the mechanism.

p. 6

Legal principles established

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  • A county public officer dissatisfied with a CPSB disciplinary decision must first exhaust the administrative appeal to the PSC under section 77 of the County Governments Act before filing suit, unless exceptional circumstances exist
  • Courts may bypass the administrative appeal procedure only on account of exceptional circumstances such as illegality, irrationality, procedural impropriety or where the appeal mechanism cannot grant sufficient remedy

Court orders

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  1. 1.The Preliminary Objection is upheld and the suit is struck out with costs

The bench

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

OM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution; section 12 of the Employment and Labour Relations Court Act

Relief refused

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All relief sought in the Statement of Claim (declaration of unfair termination, 12 months' salary, general damages for defamation, notice pay, salary arrears, leave days, PAYE remittance, deduction settlement)

The suit was premature for failure to exhaust the administrative appeal mechanism under section 77 of the County Governments Act

p. 6

Costs

Suit struck out with costs to the Respondent

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.

Consequently, I find merits in the Preliminary objection, decline jurisdiction over the suit for being premature and accordingly strike out the suit with costs.
p. 6Final orders - striking out for prematurity
any public oficer in a county public service dissatisfied by a decision of the CPSB or any person exercising or purporting to exercise disciplinary control over him or her, must first exhaust the administrative appeal mechanism prescribed by section 77 of the County Government Act.
p. 5Exhaustion of administrative appeals
However, it must be appreciated that the right to access court under Article 48 of the Constitution is not absolute.
p. 4Limits of access to justice

Issues in the judgment

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minor

The judgment is headed 'Background' and 'Submissions'/'Determination' and describes the notice of preliminary objection as a 'ruling' in the closing order, but no case number or neutral citation appears anywhere in the text

minor

The judgment refers to 'section 86 of the Public Service Act CAP 185' but elsewhere to 'PSC Act' and 'Public Service Commission Act in 2017', with slightly inconsistent naming of the same statute

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, "Githinji v County Government of Tharaka Nithi (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2754 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2754/eng@2024-11-08

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