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ELRCDismissedNot stated in the judgment (Petition dated 25th March 2025)

Nyamu v Nairobi City County Government & 3 others (Employment and Labour Relations Petition E045 of 2025) [2025] KEELRC 2478 (KLR)

Employment and Labour Relations Court
22 September 2025
HWHellen Wasilwa
3,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a county worker can challenge a Governor-made dismissal directly, without first exhausting appeals to the Public Service Commission.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Hellen Wasilwa, J on 22nd September 2025, determines a Notice of Preliminary Objection dated 7th April 2025 lodged by the Respondents against a Petition filed on 25th March 2025 challenging the termination of the Petitioner's employment. The Respondents raised four issues: lack of jurisdiction, violation of the doctrine of exhaustion under section 85 of the Public Service Commission Act and section 77 of the County Governments Act, failure to meet the Anarita Karimi Njeru constitutional petition threshold, and disregard of binding precedents including Mobegi, Nyambane and Alfred Sifa Dena. The Petitioner, submitting in opposition, argued that the termination was effected not by the County Public Service Board but by the 3rd Respondent, the Governor, who acted ultra vires and without notice or hearing; that questions of law and procedure are not appealable to the Public Service Commission; and that the court's constitutional and statutory jurisdiction under Article 162(2)(a) and section 12 of the Employment and Labour Relations Act cannot be ousted by statute, relying on Abdikadir Suleiman and Hulbhai Gedi Abdille on exceptional circumstances permitting bypass of the statutory appellate process. The court held that since the termination was made by the 3rd Respondent and not directly by the County Public Service Board, the impugned decision is not one appealable to the Public Service Commission under sections 85 and 86 of the Public Service Commission Act, and whether the decision was made through the authority of the County Public Service is a matter to be determined within the petition. The preliminary objection was found to have no merit and dismissed, with the parties directed to proceed with the main petition. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the Employment and Labour Relations Court has jurisdiction to hear and determine the Petition as drawn and filed
  2. 2.Whether the Petition violates the doctrine of exhaustion under section 85 of the Public Service Commission Act and section 77 of the County Governments Act
  3. 3.Whether the Petition meets the threshold of a Constitutional Petition
  4. 4.Whether the Petition disregards various jurisprudential precedents

Key legal issues

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01

Whether the termination of the Petitioner by the 3rd Respondent (the Governor) is appealable to the Public Service Commission, triggering the exhaustion doctrine

Holding

The preliminary objection fails because the impugned termination was by the 3rd Respondent and not a decision of the County Public Service Board; such a decision is not one appealable to the Public Service Commission under sections 85 and 86 of the Public Service Commission Act.

Reasoning

The court examined sections 85 and 86 of the Public Service Commission Act which govern appeals from the county government public service. The court noted that the termination letter (BKN14) was made by the 3rd Respondent, not directly by the County Public Service Board. Whether the termination was from or through the authority of the County Public Service is a matter yet to be determined within the main petition. Accordingly, the exhaustion argument could not sustain the preliminary objection.

p. 8
02

Whether the preliminary objection on jurisdiction and exhaustion should be upheld

Holding

The preliminary objection has no merit and is dismissed; the parties are to proceed with the main petition.

Reasoning

The court found that since the impugned decision was not a decision of the County Public Service Board, the statutory appellate route to the Public Service Commission under section 85 of the Public Service Commission Act and section 77 of the County Governments Act was not triggered. Whether the termination was made through the authority of the County Public Service remains a substantive question for determination in the petition itself, not a preliminary point.

p. 8

Legal principles established

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  • A decision on termination of employment made by a person other than the County Public Service Board (such as the Governor) is not a decision appealable to the Public Service Commission under sections 85 and 86 of the Public Service Commission Act, and the doctrine of exhaustion does not bar a party from approaching the ELRC in such circumstances.

Court orders

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  1. 1.The preliminary objection dated 7th April 2025 is found to have no merit and is dismissed
  2. 2.The parties are directed to proceed with the main petition

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) and (3) as read with Article 165(5) and (6) of the Constitution, Section 12 of the Employment and Labour Relations Act, 2011 and Section 87 of the Employment Act, 2007

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 circumstances of the case, the decision is not one appealable to the Public service commission as envisaged under section 85 and 86 the Public Service Commission Act.
p. 8Exhaustion doctrine - appealability to the Public Service Commission
If indeed that decision was from the County Public Service Board or through authority of the County Public Service then that is yet to be determined by this court and which matter can be determined within this petition.
p. 8Question of authority for the termination to be determined at full trial
I find the preliminary objection then has no merit and is dismissed accordingly. The parties directed to proceed with the main petition.
p. 8Final orders - dismissal of the preliminary objection
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2025.
p. 8Final orders - delivery of ruling

Issues in the judgment

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minor

The judgment cites Article 234(3)(d) of the Constitution but quotes text that appears to relate to clause 234(3)(f) (exemption of state offices from Commission functions); the quoted passage does not match the cited article as printed.

minor

The coram/case number of the petition is not stated anywhere in the judgment excerpt provided.

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, "Nyamu v Nairobi City County Government & 3 others (Employment and Labour Relations Petition E045 of 2025) [2025] KEELRC 2478 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition dated 25th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2478/eng@2025-09-22

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