Alumasa v County Government of Vihiga & another (Cause E062 of 2025) [2025] KEELRC 2667 (KLR)
The bottom line
#A Vihiga county employee's unfair termination case was struck out because he never first appealed to the Public Service Commission as the law requires.
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 respondent's Notice of Preliminary Objection dated 29th July, 2025 meets the threshold of a preliminary objection
- 2.Whether the claimant's suit is statute barred under Section 89 of the Employment Act
- 3.Whether the claimant exhausted the internal dispute resolution mechanisms prescribed by Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act before filing suit
Key legal issues
#Whether the notice of preliminary objection met the Mukisa Biscuit threshold
The objection met the threshold as it raised a clear point of law on jurisdiction capable of disposing of the suit
Applying the classic formulation in Mukisa Biscuit, the court found the objections grounded on the court's jurisdiction to hear the claim and were clear points of law. A preliminary objection is a threshold issue that must be disposed of at the earliest opportunity owing to its potential to scuttle the suit before full hearing.
Whether the claim was statute barred under Section 89 of the Employment Act
The court declined to definitively find the claim time barred; on the claimant's letter of 15th January 2024 the action may not be statute barred
Although Section 89 bars claims filed three years after termination, the record was confused: the interdiction letter was dated 4th July 2019, a reply to dismissal was altered by hand to 2021, and the claimant's letter of 15th January 2024 referenced an appeal allowed on 22nd September 2023. Neither party availed the dismissal letter, so the court could not conclusively determine accrual.
Whether the claimant exhausted internal dispute resolution mechanisms before filing suit
The claimant did not appeal to the Public Service Commission; the suit was premature and the preliminary objection succeeded
Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Sections 85 and 87(2) of the Public Service Commission Act vest the PSC with mandatory appellate jurisdiction over county public service disciplinary decisions. The word 'may' in Section 77(1) does not create an opt-out; the mandatory provisions require exhaustion. The claimant demonstrated no appeal to the PSC, so the ELRC's jurisdiction was prematurely invoked.
Legal principles established
#- A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
- A person shall not file legal proceedings in court on county public service matters within the PSC's appellate jurisdiction unless the statutory procedure is exhausted
- Claims grounded on unfair or unlawful termination of employment accrue on the date of termination and become statute barred three years later under Section 89 of the Employment Act
Court orders
#- 1.The claimant's Memorandum of Claim dated 18th July, 2025 filed on 8th July, 2025 and the Notice of Motion of even date are struck out with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; suit challenged 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
Relief refused
#Declaration that termination of employment was unlawful, malicious and unprocedural, unpaid house allowance, general damages, unpaid salary and interest
Suit struck out for failure to exhaust the internal appellate mechanism before the Public Service Commission; the suit was filed prematurely
Costs
No orders as to costs
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.
Consequently, the claimant’s Memorandum of Claim dated 18th July, 2025 filed on 8th July, 2025 and the Notice of Motion of even date are hereby struck out with no Orders as to costs.
Having failed to demonstrate that the appellate process prescribed by the County Government’s Act and the Public Service Commission Act had been invoked, it is clear that the claimant has failed to prove that the internal dispute resolution mechanisms had been exhausted as by law required, before this court’s jurisdiction was invoked.
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.
Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained
The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts.
Issues in the judgment
#Paragraph numbering is duplicated/confused in the judgment (two paragraphs numbered 9, and the preliminary objection is said to be 'dated 29th July, 2025' while introduced earlier as 'the instant Notice of Preliminary Objection' after the memorandum filed 30th July)
The judgment states the Memorandum of Claim is 'dated 18th July, 2025 and filed on 8th July, 2025' - the filing date precedes the purported date of the document, an internal contradiction
Conflicting dates on the record: interdiction letter dated 4th July, 2019 versus a reference to interdiction on 13th March, 2021; a reply to dismissal dated 19th March, 2020 altered by hand to 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alumasa v County Government of Vihiga & another (Cause E062 of 2025) [2025] KEELRC 2667 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 18th July, 2025, filed 8th July, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2667/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.