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ELRCDismissedNot stated in the judgment as provided

Kenya County Government Workers Union v County Government of Kitui & another (Petition E003 of 2024) [2025] KEELRC 1320 (KLR)

Employment and Labour Relations Court
9 May 2025
959 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that skipping a required appeal to the Public Service Commission doesn't kill an employment lawsuit—it just means the court may pause it, not dismiss it.

What this practically means

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Executive summary

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The 1st and 2nd respondents filed a Notice of Preliminary Objection dated 11.03.2025 seeking dismissal of the petition on two grounds: first, that the court lacked jurisdiction because the petitioners had not exhausted the dispute resolution procedure under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, 2017, both of which require an aggrieved county government employee to appeal to the Public Service Commission; and second, that the petitioners did not issue a notice of intention to sue under section 13A of the Government Proceedings Act, rendering the suit bad in law. Both parties filed submissions. Byram Ongaya, Principal Judge, accepted that the cited sections prescribe appeal to the Commission in the first instance, but held that filing before exhaustion renders a suit premature rather than stripping the court of jurisdiction. The court further held that alternative dispute resolution mechanisms, finality clauses and ouster clauses cannot bar the court's jurisdiction where the legality or constitutionality of an action, omission or decision is in dispute, as alleged here. The court invoked Rule 56(5) of the ELRC (Procedure) Rules, which provides that want of exhaustion does not bar a suit alleging unconstitutionality or unlawfulness and that such a suit may be stayed and not struck out. The preliminary objection was dismissed with costs in the cause, and directions were ordered for expeditious determination of the petition, with the file to be returned to the Machakos sub-registry.

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 petitioners did not exhaust the appeal procedure to the Public Service Commission under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act
  2. 2.Whether the failure to issue a notice of intention to sue under section 13A of the Government Proceedings Act renders the suit bad in law

Key legal issues

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01

Effect of non-exhaustion of the statutory appeal to the Public Service Commission

Holding

Non-exhaustion makes the suit premature and empowers the court to stay, not strike out, the suit; it does not oust the court's jurisdiction, especially where unconstitutionality or unlawfulness is alleged.

Reasoning

The court accepted that Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act prescribe appeal to the Commission in the first instance. However, it held that premature filing affects timing, not jurisdiction. Rule 56(5) of the ELRC (Procedure) Rules expressly provides that want of exhaustion is no bar to a suit alleging unconstitutionality or unlawfulness, and that such a suit may be stayed and not struck out.

p. 4
02

Notice of intention to sue under section 13A of the Government Proceedings Act

Holding

The objection on this ground failed together with the jurisdictional objection; the preliminary objection was dismissed as a whole with costs in the cause.

Reasoning

The 1st respondent asserted the claimants did not issue a notice under section 13A of the Government Proceedings Act, making the suit bad in law. The court, after upholding the petitioners' submission on exhaustion, dismissed the entire preliminary objection and directed parties to take directions for expeditious determination of the petition.

p. 4

Legal principles established

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  • Failure to exhaust a statutory dispute resolution procedure renders a suit premature, not one outside the court's jurisdiction.
  • Ouster clauses and finality provisions do not bar the court's jurisdiction where illegality or unconstitutionality is alleged.

Court orders

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  1. 1.The preliminary objection is dismissed with costs in the cause.
  2. 2.Parties to take directions for expeditious determination of the petition or further appropriate steps in the matter.
  3. 3.The Deputy Registrar to return the Court file to the Machakos Court's sub-registry forthwith.

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; exhaustion doctrine under Section 77 County Governments Act and Section 87(2) Public Service Commission Act, 2017; Rule 56(5) ELRC (Procedure) Rules

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 Court has considered the cited sections and indeed they prescribe appeal to the Commission in the first instance prior to moving the Court.
p. 3statutory appellate procedure to the PSC
moving the Court prior to exhaustion of that statutory procedure may only render the suit premature and not render the jurisdiction of the Court unavailable or lacking.
p. 3exhaustion and jurisdiction
alternative dispute resolution process or finality or ouster clauses such as the cited provisions shall not operate as to bar the Court’s jurisdiction in disputes about legality or constitutionality of an action, omission, decision or such other matter in dispute.
p. 3ouster clauses and constitutional questions
a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.
p. 4Rule 56(5) ELRC Procedure Rules
The preliminary objection is dismissed with costs in the cause.
p. 4final orders - disposition

Issues in the judgment

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minor

The judgment refers to the parties inconsistently, shifting between 'petitioners' and 'claimants' within the same passage.

minor

The introductory line describing the preliminary objection as 'made on the following grounds: a.' is followed by a blank/numbering discontinuity before the grounds are listed.

minor

The judgment contains a typographical error omitting 'not' in the sentence on ouster clauses.

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, "Kenya County Government Workers Union v County Government of Kitui & another (Petition E003 of 2024) [2025] KEELRC 1320 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1320/eng@2025-05-09

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