Kenya County Government Workers Union v County Government of Kitui & another (Petition E003 of 2024) [2025] KEELRC 1320 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Effect of non-exhaustion of the statutory appeal to the Public Service Commission
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.
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.
Notice of intention to sue under section 13A of the Government Proceedings Act
The objection on this ground failed together with the jurisdictional objection; the preliminary objection was dismissed as a whole with costs in the cause.
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.
Legal principles established
#- 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
#- 1.The preliminary objection is dismissed with costs in the cause.
- 2.Parties to take directions for expeditious determination of the petition or further appropriate steps in the matter.
- 3.The Deputy Registrar to return the Court file to the Machakos Court's sub-registry forthwith.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.
The preliminary objection is dismissed with costs in the cause.
Issues in the judgment
#The judgment refers to the parties inconsistently, shifting between 'petitioners' and 'claimants' within the same passage.
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.
The judgment contains a typographical error omitting 'not' in the sentence on ouster clauses.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.