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ELRCStruck OutPetition No. E002 of 2026

Brian Ochieng & 293 Others v Siaya County Public Service Board & 2 others

Employment & Labour Relations Court of Kenya at Kisumu
23 September 2026
4,126 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out 294 health workers' petition because they skipped the required County Public Service Board appeal process before going to court.

What this practically means

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Executive summary

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294 petitioners, described as health workers (nurses, clinical officers, doctors, public health officers and administrative staff) employed by Siaya County between August 2023 and April 2025, petitioned the ELRC at Kisumu alleging that the County Secretary, at a public baraza on 11th September 2025, purportedly dismissed them as 'ghost workers' without notice, reasons or a hearing, and that their salaries went unpaid for over eight months. They sought declarations of ultra vires action and rights violations, certiorari, reinstatement, salary arrears of Kshs. 149,974,984/-, twelve months' compensation and costs. The Respondents denied any employment relationship, contending the employment documents were forgeries reported to police under OB No. 41/04/07/2025, and urged dismissal. Both sides filed written submissions. The Court, in a brief disposition, noted that in Misc. Application No. E068 of 2025 it had already directed the parties to exhaust County Public Service Board procedures; there was no evidence the Petitioners appealed under section 77 of the County Governments Act, so the exhaustion doctrine was bypassed again. The Court further held that the Petitioners had not articulated any constitutional issue - the Petition was an ordinary employment claim elevated to the constitutional sphere in title only, which ought to have been brought as a claim upon termination. The Petition was struck out with no order as to costs. No findings were made on the existence of the employment relationship or the forgery allegations.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction
  2. 2.Whether the Petition contravenes the exhaustion doctrine
  3. 3.Whether there existed an employer-employee relationship between the Petitioners and the Respondents
  4. 4.Whether the termination of employment was lawful
  5. 5.Whether the 3rd Respondent's actions were ultra vires
  6. 6.Whether the Petitioners' constitutional rights were violated
  7. 7.Whether the Petitioners are entitled to the reliefs sought

Key legal issues

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01

Exhaustion of alternative remedies

Holding

The Petition was struck out because the Petitioners bypassed the appeal mechanism to the County Public Service Board under section 77 of the County Governments Act, despite a prior court direction to exhaust those procedures

Reasoning

The Court noted that in Misc. Application No. E068 of 2025 it had directed the parties to exhaust the County Public Service Board procedures before moving the Court. There was no evidence the Petitioners appealed under section 77 of the County Governments Act, and the exhaustion doctrine was bypassed again by filing the Petition.

p. 25
02

Constitutionalisation of ordinary employment claims

Holding

The Petition was an ordinary employment claim elevated to the constitutional sphere in title only, with no constitutional issue articulated, and was therefore misplaced

Reasoning

The Court observed that the Petitioners had not articulated any constitutional issue; their grievance was an ordinary employment dispute that ought to have been preferred as a claim upon termination of employment rather than as a petition alleging violations of Articles 10, 27, 28, 30, 35, 41 and 47.

p. 25
03

Existence of an employer-employee relationship

Holding

Not determined on the merits; the Petition was struck out before any finding on whether an employment relationship existed

Reasoning

The Petitioners asserted they were issued appointment, deployment and posting letters and worked for over eight months without pay; the Respondents contended the documents were forgeries, reported to police under OB No. 41/04/07/2025, and that no recruitment occurred. The Court did not resolve this factual dispute, striking out the Petition instead.

p. 23

Legal principles established

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  • Where a statute prescribes an alternative dispute-resolution mechanism, it must ordinarily be exhausted before resort to the Court
  • A petition that merely dresses an ordinary employment claim in constitutional language without articulating a constitutional issue is misplaced and liable to be struck out

Court orders

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  1. 1.The Petition 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
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Relief refused

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All reliefs sought in the Petition (declarations, certiorari, mandamus, reinstatement, salary arrears of Kshs. 149,974,984/-, 12 months' compensation, injunction, damages and costs)

Petition struck out for bypassing the exhaustion doctrine and for being an ordinary employment claim dressed as a constitutional petition

p. 25

Costs

No order as to costs - each party to bear their 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.

The Petition being misplaced is struck out albeit with no order as to costs.
p. 25Final orders - striking out
The Petitioners have not articulated a constitutional issue, rather, their Petition is an ordinary claim elevated to constitutional sphere in title only.
p. 25Constitutionalisation of ordinary employment claims
There is no evidence the Petitioners attempted to appeal the decision to the County Public Service Board in terms of section 77 of the Act.
p. 25Exhaustion doctrine
In the Court Ruling in Misc. Application No. E068 of 2025, the Court directed the parties to exhaust the procedures under the County Public Service Board prior to moving the Court.
p. 25Prior direction to exhaust
It is so ordered.
p. 25Disposition

Issues in the judgment

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minor

Judgment dated 23rd September 2026 but Petition dated 9th January 2026 and Respondents cite a 2026 eKLR case; dates appear internally consistent but the case number year (2026) with September delivery is unusually tight

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, "Brian Ochieng & 293 Others v Siaya County Public Service Board & 2 others", Case Analysis (2026). Petition No. E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2497/eng@2026-09-23

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