Associaton of Public Health Officers of Kenya v Siaya County Secretary & 2 others (Petition E010 of 2024) [2025] KEELRC 407 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed Siaya County Public Service Board's bid to overturn a judgment, confirming email service counts and that jurisdiction complaints belong on appeal.
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 ELRC has jurisdiction to hear and determine the constitutional Petition
- 2.Whether the ex parte judgment dated 25th July, 2024 was obtained without service and should be set aside
- 3.Whether the applicants' draft defence raises triable issues justifying setting aside the judgment
Key legal issues
#Jurisdiction of the ELRC over the constitutional petition
The ELRC has jurisdiction to hear constitutional petitions and enforce fundamental rights ancillary and incidental to employment and labour relations disputes
Relying on the Supreme Court in Kenya Tea Growers Association v NSSF, the Court of Appeal in Daniel N. Mugendi v Kenyatta University and Majanja J in USIU v Attorney General, the court held that jurisdiction over employment and labour matters under Article 162(2)(a) extends to constitutional questions incidental to such disputes, and the High Court is precluded from such matters under Article 165(5)(b).
Whether service was effected on the applicants
Service via the applicants' official email addresses was proved by an affidavit of service and electronic print-out and was not controverted; the ex parte judgment was regular
The applicants did not deny that the email addresses used (infopsb@siaya.go.ke and info@siaya.go.ke) belonged to them, nor explain when their advocates learnt of the matter. The stay orders were also emailed to them, indicating awareness. Their contention of no service was unsubstantiated.
Whether the applicants' defence raises triable issues
No bona fide triable issues were raised; the only issue identified was jurisdiction, which is a matter of law not evidential
Applying Job Kilach v Nation Media Group and Patel v Cargo Handling Services, a triable issue is one requiring interrogation at trial. The applicants raised only the jurisdictional objection, which should be a ground of appeal rather than a post-judgment motion ground, and disclosed no quantifiable prejudice beyond the cost of re-advertising the position.
Legal principles established
#- Setting aside or varying an ex parte judgment under Order 10 Rule 11 is a matter of judicial discretion to be exercised judicially
- An irregular ex parte judgment, e.g. one obtained without proper service, ought to be set aside ex debito justitiae rather than as a matter of discretion
- The ELRC may determine questions of constitutional validity of a statute arising within a dispute falling within its employment and labour relations jurisdiction
- Service of court documents by email to addresses belonging to the party, uncontroverted by affidavit, constitutes effective service
Court orders
#- 1.The Applicants' Notice of Motion dated September 16, 2024 is dismissed with 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 (court seised of a constitutional petition within its employment and labour relations jurisdiction)
Relief refused
#Setting aside the judgment dated 25th July, 2024 and all consequential orders and execution
Service by email was proved and not controverted; lack of service allegation unsubstantiated; jurisdiction argument is a matter of law for appeal, not a motion after judgment
Unconditional leave to defend the suit
The only issue raised was jurisdiction, a matter of law, not evidential, so no bona fide triable issues were demonstrated
Costs of the application
Dismissed with no orders as to costs
Costs
Dismissed with no orders as to 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.
whether or not to set aside or vary and ex parte judgment is a matter of discretion which the court must exercise judicially not capriciously or whimsically.
the same ought to be set aside not as a matter of discretion, but ex debito justiciae for a court should never countenance an irregular judgment on its record
if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the Constitution, a question arises regarding the constitutional validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue
The upshot of the foregoing is that the Applicants Notice of Motion dated September 16, 2024 is without merit and it is accordingly dismissed with no orders as to costs.
Issues in the judgment
#Paragraph numbering skips from 44 to 46; paragraph 45 is missing in the judgment as provided
The applicant's supporting affidavit of Joseph Ogutu is sworn on 17th September, 2024 while the motion is dated September 16, 2024; also inconsistent spelling of the same deponent (Ogotu/Ogutu/Oguttu) within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Associaton of Public Health Officers of Kenya v Siaya County Secretary & 2 others (Petition E010 of 2024) [2025] KEELRC 407 (KLR)", Case Analysis (2025). Petition (Siaya County Director of Health recruitment matter) - Notice of Motion dated September 16, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/407/eng@2025-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.