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ELRCDismissedMiscellaneous Application dated 25th April, 2025

Lel v Uasin Gishu County Public Service Board & another; Bulbul & 6 others (Interested Parties) (Miscellaneous Application E024 of 2025) [2025] KEELRC 3765 (KLR)

Employment and Labour Relations Court
11 December 2025
4,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a former county legal officer's bid for allowances because it was filed as a bare application instead of a proper suit.

What this practically means

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Executive summary

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The Applicant, the immediate former County Attorney of Uasin Gishu County, moved the court by Notice of Motion dated 25th April, 2025 seeking orders compelling the 1st and 2nd Respondents to pay various allowances (prosecutorial, non-practicing, special legal, responsibility, entertainment and robe) to himself, the County Solicitor, a Principal Legal Counsel and several Legal Counsels, from their respective dates of appointment. He relied on Public Service Commission circulars and decisions of the ELRC awarding similar allowances to legal officers. The Respondents filed grounds of opposition, arguing that the Salaries and Remuneration Commission has the exclusive mandate over remuneration and that the court lacks jurisdiction. The 7th Interested Party (SRC) filed a preliminary objection contending that the ELRC (Procedure) Rules, 2024 exhaustively limit miscellaneous applications and that a claim for substantive rights cannot be brought by notice of motion without an originating pleading. The court framed two issues: jurisdiction and entitlement to the orders sought. Relying on Owners of the Motor Vessel 'Lillian S', Mukisa Biscuit and Scope Telematics, the court held that the mode of instituting proceedings is jurisdictional; a notice of motion cannot sustain a claim for substantive rights and Article 159(2)(d) does not cure jurisdictional defects. Upholding the preliminary objection, the court dismissed the application without orders as to costs, while expressly leaving the substantive prayers undetermined and granting the Applicant liberty to institute a proper substantive suit.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to hear and determine the application filed by the applicant
  2. 2.If so, whether the Applicant is entitled to the orders sought in his application

Key legal issues

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01

Jurisdiction to entertain a standalone miscellaneous application seeking substantive employment benefits

Holding

The court lacks jurisdiction because the application is not anchored on a statement of claim, petition, judicial review application or originating summons as prescribed by the ELRC (Procedure) Rules, 2024

Reasoning

The ELRC Rules limit institution of suits to statements of claim, petitions and judicial review. A notice of motion is not a prescribed mode of instituting a suit and cannot sustain a claim for substantive rights such as payment of allowances, which require evidence at a full hearing. The prescribed mode of initiation is jurisdictional, and Article 159(2)(d) does not cure such a defect.

p. 11
02

Whether Article 159(2)(d) (overriding objective) can save a procedurally defective suit

Holding

No; procedural steps that are jurisdictional prerequisites cannot be cured by Article 159

Reasoning

Relying on Scope Telematics and the Supreme Court decision in Patricia Cherotich Sawe, the court held that Article 159(2)(d) is not a panacea for procedural shortfalls where the defect goes to jurisdiction. Jurisdiction is a pure question of law and proceedings filed without it cannot be salvaged by the overriding objective.

p. 11

Legal principles established

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  • A notice of motion cannot be used to claim substantive rights; such claims must be anchored on a substantive suit
  • Article 159(2) cannot cure proceedings filed without jurisdiction; jurisdiction is a matter of law, not procedure
  • Failure to institute a suit in the proper manner goes to the root of the competence of the suit

Court orders

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  1. 1.The preliminary objection of the 7th Interested Party is upheld
  2. 2.The application dated 25th April, 2025 is dismissed
  3. 3.No orders for costs
  4. 4.The applicant is at liberty to invoke the jurisdiction of the court properly through a substantive suit

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 Act, 2011 and the Employment and Labour Relations Court (Procedure) Rules, 2024

Relief refused

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Payment of allowances (prosecutorial, non-practicing, special legal, responsibility, entertainment and robe allowances) to the Applicant and legal officers

The application sought substantive orders through a Notice of Motion not anchored on a substantive suit; jurisdiction not properly invoked

p. 11

Costs of the application

The court declined to award costs

p. 11

Costs

No orders for costs; each party to bear their own costs (implied by 'There shall be no orders for 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.

For these reasons I find merit in the preliminary objection and uphold the same. The application herein is accordingly dismissed. There shall be no orders for costs.
p. 11Final orders - dismissal of the application
For avoidance of doubt, the substantive prayers in the application have not been determined and the applicant is at liberty to invoke the jurisdiction of the court properly through a substantive suit.
p. 11Liberty to file a substantive suit
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 8Jurisdiction (quoting Owners of the Motor Vessel 'Lillian S')
A notice of motion cannot be used to claim substantive rights.
p. 11Mode of instituting suits

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, "Lel v Uasin Gishu County Public Service Board & another; Bulbul & 6 others (Interested Parties) (Miscellaneous Application E024 of 2025) [2025] KEELRC 3765 (KLR)", Case Analysis (2025). Miscellaneous Application dated 25th April, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3765/eng@2025-12-11

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