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ELRCStruck OutNot stated in the judgment as extracted

Polo & another v County Government of Homabay & another (Cause E079 of 2024) [2025] KEELRC 2358 (KLR)

Employment and Labour Relations Court
28 May 2025
2,224 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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County employees must appeal to the Public Service Commission before suing in court over pension or gratuity, or their case risks being struck out.

What this practically means

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Executive summary

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The claimants, former county public service employees, filed a Memorandum of Claim dated 1st October 2024 seeking gratuity and pension contributions allegedly unpaid by the respondents. After the claimants' application for reinstatement of the suit was compromised on 20th March 2025, the respondents filed a Notice of Preliminary Objection dated 28th March 2025 contending that the court lacked jurisdiction because the claimants had not exhausted the statutory dispute resolution mechanisms governing county public service employment matters, and that the suit was frivolous, vexatious and an abuse of process. The respondents relied on Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act, and on the Lilian S, Muthinja Kabiru and Mutanga Tea line of authority. The claimants filed no submissions. The court found that the objection raised a pure point of law within the Mukisa Biscuit threshold. It held that Article 234(2)(i), read with Section 77 of the County Governments Act (which expressly covers appeals on pension benefits, gratuity and other terminal benefits) and Section 87(2) of the Public Service Commission Act, mandatorily requires an aggrieved county public service employee to appeal to the Public Service Commission before approaching the court, notwithstanding the permissive 'may' in Section 77(1). It was common ground that the claimants had never appealed to the Commission or shown the mechanism to have failed or been unavailable. Applying the Supreme Court's exhaustion jurisprudence in NGO's Co-ordination Board v EG and the Karume principle, the court found the suit patently premature and struck it out with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the respondents' Notice of Preliminary Objection meets the threshold of a pure point of law in the Mukisa Biscuit sense
  2. 2.Whether the Employment and Labour Relations Court has jurisdiction to entertain the suit where the claimants have not exhausted the statutory dispute resolution mechanisms before the Public Service Commission
  3. 3.Whether the claimants' suit is premature for failure to appeal to the Public Service Commission under Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act

Key legal issues

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01

Whether the preliminary objection raises a pure point of law

Holding

Yes; the objection challenges the court's jurisdiction, meeting the Mukisa Biscuit threshold, and the claimants did not contend otherwise.

Reasoning

The court applied the classic Mukisa Biscuit formulation: a preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit. Since the notice targets jurisdiction and no fact-finding or exercise of discretion is required, and the claimants did not dispute its nature, the threshold was satisfied.

p. 3
02

Whether exhaustion of the Public Service Commission appellate process is mandatory before suit

Holding

Yes; Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act cumulatively mandate appeal to the Public Service Commission on county public service employment matters, including pension, gratuity and terminal benefits, before invoking the court's jurisdiction.

Reasoning

Article 234(2)(i) empowers the Commission to hear and determine appeals on county governments' public service. Section 77 of the County Governments Act expressly covers appeals on pension benefits, gratuity and other terminal benefits. Although subsection (1) uses 'may', subsection (2) is mandatory, and Section 87(2) of the Public Service Commission Act prohibits legal proceedings before the Part's procedure is exhausted. The court relied on the Supreme Court's exhaustion jurisprudence in NGO's Co-ordination Board v EG and the Karume principle that prescribed procedures must be strictly followed.

p. 5
03

Whether the claimants' suit was premature and therefore liable to be struck out

Holding

Yes; having neither appealed to the Public Service Commission nor justified bypassing it, the suit was premature and was struck out.

Reasoning

It was common ground that the claimants never presented an appeal to the Public Service Commission nor demonstrated that the mechanism failed or was unavailable. Making the court the first port of call breached the exhaustion doctrine and Article 159(2)(c)'s command to promote alternative dispute resolution, leaving the court no option but to strike out the suit.

p. 5

Legal principles established

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  • A person aggrieved by a decision of a County Public Service Board, including on pension, gratuity and terminal benefits, must first appeal to the Public Service Commission before filing a suit in court; the exhaustion requirement is mandatory despite the permissive word 'may' in Section 77(1) of the County Governments Act.

Court orders

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  1. 1.The claimants' suit filed on 2nd October, 2024 is struck out
  2. 2.No order as to costs

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 under its constituting statute; suit challenged via preliminary objection invoking Article 234(2)(i) of the Constitution of Kenya 2010

Relief refused

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Claimants' claim for gratuity and pension contributions (as presented to the court)

Suit premature for failure to exhaust the statutory appeal process before the Public Service Commission; jurisdiction not properly invoked

p. 5

Costs

Struck out with no Order as to costs (each party to bear own costs)

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.

In the upshot, the claimant's suit filed on 2nd October, 2024 is struck out with no Order as to costs.
p. 5Final orders - striking out and costs
a person whose grievance against the County Government emanates from an employment relationship are required to lodge an appeal with the Public Service Commission before invoking the court's jurisdiction.
p. 4Mandatory exhaustion of Public Service Commission appellate process
It is now firmly established that in cases where there is an alternative dispute resolution mechanism established by legislation, the courts must exercise restraint in exercising their jurisdiction and accord deference to such dispute resolution bodies under the doctrine of exhaustion.
p. 4Doctrine of exhaustion (adopted from Supreme Court)
A person shall not file any legal proceedings in any court of law with respect to matters within the jurisdiction of the commission to hear and determine appeals from County Government Public Service unless the procedure provided under this part has been exhausted.
p. 4Section 87(2) Public Service Commission Act - statutory bar

Issues in the judgment

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minor

The judgment refers to a 'Notice of Motion' where it evidently means the Notice of Preliminary Objection

minor

Case number and party names are not stated in the judgment; the parties are referred to only as 'claimants' and 'respondents' throughout

minor

Objection ground cites Section 87[2] and 77 of the Public Service Commission Act and the County Governments Act respectively, but the court attributes Section 77 to the County Governments Act

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, "Polo & another v County Government of Homabay & another (Cause E079 of 2024) [2025] KEELRC 2358 (KLR)", Case Analysis (2025). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2358/eng@2025-05-28

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