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ELRCOtherNot stated in judgment

Laban v Machakos County Assembly Service Board & 2 others (Petition E004 of 2023) [2025] KEELRC 1160 (KLR)

Employment and Labour Relations Court
24 April 2025
BMB. O. M. Manani
5,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that the sacked Machakos County Assembly Clerk must first take his removal case to the Public Service Commission before courts will decide it.

What this practically means

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Executive summary

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The Petitioner, formerly the Clerk of the County Assembly of Machakos, petitioned the Employment and Labour Relations Court challenging his suspension and removal from office, seeking among other reliefs reinstatement. The 2nd and 3rd Respondents filed a preliminary objection contending that the court lacked jurisdiction because the Petitioner, a County public officer aggrieved by a decision affecting his employment, was required under section 77 of the County Governments Act, sections 85(c) and 87(2) of the Public Service Commission Act and the Public Service Commission (County Government Public Service Appeals Procedure) Regulations, 2022 to appeal first to the Public Service Commission. They also invoked the doctrine of constitutional avoidance. The Petitioner argued that his case, raising constitutional and legality questions, belonged in court, and that as an employee of the County Assembly Service Board he was not a County public officer. The court held that a competent quasi-judicial body can determine constitutional questions, and that the statutory definitions of County public service and County public officer capture County Assembly staff, including the Clerk, who is neither a state officer nor within the excluded offices. It further held that alternative dispute resolution mechanisms postpone rather than oust the court's jurisdiction; the court could entertain the Petition for interim conservatory relief under rule 56(5) of the ELRC (Procedure) Rules, 2024, but where a party elects the statutory route and has not waived it, the suit should be stayed and referred. The court remitted the matter to the Public Service Commission, stayed further hearing of the Petition, and made no order as to costs in the interim. The constitutional avoidance issue was not addressed.

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 lacks jurisdiction because the Petitioner failed to exhaust the dispute resolution mechanism of appeal to the Public Service Commission under section 77 of the County Governments Act and sections 85 and 87 of the Public Service Commission Act
  2. 2.Whether the Petition offends the doctrine of constitutional avoidance
  3. 3.Whether the Petitioner, as Clerk employed by the County Assembly Service Board, is a County public officer within the meaning of section 77 of the County Governments Act

Key legal issues

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01

Whether raising constitutional questions permits bypassing a quasi-judicial body such as the Public Service Commission

Holding

No. A competent quasi-judicial forum is entitled to hear and determine constitutional issues raised in a dispute and cannot be sidestepped on that ground alone.

Reasoning

The court relied on the Court of Appeal decision in Albert Chaurembo Mumba, which itself echoed the Supreme Court's Communication Commission of Kenya decision. The Court of Appeal held that no exclusive jurisdiction to interpret the Bill of Rights vests in the High Court; tribunals and other authorities can interpret the Bill of Rights, and constitutional violations can be raised in any competent forum, which is bound by the Constitution in applying its provisions. Accordingly, the Public Service Commission could inquire into the alleged constitutional and statutory breaches the Petitioner raised.

p. 3
02

Whether the Clerk of a County Assembly, employed by the County Assembly Service Board, is a County public officer required to appeal to the Public Service Commission

Holding

Yes. He falls within the statutory definitions of County public service and County public officer and is neither a state officer nor one of the excluded offices.

Reasoning

Section 2 of the County Governments Act defines County public service as the collectivity of individuals performing functions within any department of the County Government or its agency, excluding only the Governor, Deputy Governor, County Executive Committee members and Members of the County Assembly. Article 176 defines a County Government as comprising a County Assembly and County Executive, so the term County public officer covers employees of both arms. The Petitioner's position as County Clerk placed him in none of the excluded categories, hence he fell within the County public service.

p. 8
03

Whether alternative dispute resolution mechanisms oust or merely postpone the court's jurisdiction, and what the court should do where they exist

Holding

They postpone, not oust, jurisdiction. The court may grant interim relief but should thereafter stay the suit and refer the dispute to the alternative forum where the parties have not waived that route.

Reasoning

The court reasoned that if alternative mechanisms ousted jurisdiction, courts could not intervene where such mechanisms cannot provide an effective remedy, particularly for interim conservatory orders which most quasi-judicial bodies cannot grant. Rule 56(5) of the ELRC (Procedure) Rules, 2024 permits a suit seeking interim relief notwithstanding non-exhaustion, and provides it may be stayed rather than struck out. Since the Respondents elected to pursue the alternative channel and had not waived it, the court acceded to that demand and stayed and remitted the Petition.

p. 6

Legal principles established

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  • An alternative dispute resolution mechanism does not oust the court's jurisdiction; it only postpones it.
  • A party who does not, at the earliest opportunity, insist on processing a dispute through alternative mechanisms is deemed to have acquiesced to the court's jurisdiction.
  • Employees of the County Assembly, including the Clerk, fall within the County public service and are amenable to appeal to the Public Service Commission under section 77 of the County Governments Act.
  • A court may entertain a matter subject to alternative dispute resolution for interim injunctive or conservatory relief, but should thereafter stay the suit and refer the parties to the alternative forum.

Court orders

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  1. 1.An order remitting the matter to the Public Service Commission for determination
  2. 2.An order staying further hearing of the Petition by this court
  3. 3.No order as to costs in the interim

The bench

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

BM
majority

Wrote the judgment

Jurisdiction invoked
Article 234(2)(i) of the Constitution; Article 159(2)(c); Employment and Labour Relations Court (Procedure) Rules, 2024, rule 56(5)

Relief refused

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Determination of the Petition by the court (including the prayer for reinstatement as Clerk)

The dispute ought to be adjudicated by the Public Service Commission in the first instance as the Petitioner did not exhaust the statutory appeal mechanism

p. 10

Costs

I make no order as to costs in the interim.

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 fact that the law provides for alternative procedures to settle a dispute does not oust the jurisdiction of the court to entertain the dispute. It only postpones this jurisdiction
p. 6Exhaustion doctrine - postponement not ouster of jurisdiction
The Petitioner’s position of County Clerk does not place him in any of the excluded ofices or positions in the definition of County public service and County public oficer. As such, he was part of the County public service.
p. 8Status of County Assembly staff as County public officers
Having regard to the foregoing, I find that the instant dispute ought to be adjudicated by the Public Service Commission in the first instance.
p. 10Determination - forum for the dispute
As such and in view of rule 56 (5) of the Employment and Labour Relations Court (Procedure) Rules, 2024, I hereby issue an order remitting the matter to the Public Service Commission for determination.
p. 10Final orders - remission to the Public Service Commission
In the interim, I issue an order staying further hearing of the Petition by this court.
p. 10Final orders - stay of the Petition
I make no order as to costs in the interim.
p. 10Costs

Issues in the judgment

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minor

The judgment does not state the petition case number, neutral citation, or the full names of the parties, referring to them only as 'the Petitioner' and 'the 1st, 2nd and 3rd Respondents'; paragraph 3 also omits its heading/numbering structure ('a.' under paragraph 4 misaligned).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Laban v Machakos County Assembly Service Board & 2 others (Petition E004 of 2023) [2025] KEELRC 1160 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1160/eng@2025-04-24

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