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ELRCDismissedELRC Petition No. E079 of 2026

Mohamed Osman Ahmed v County Public Service Board of Wajir & Wajir County Government

Employment and Labour Relations Court
23 September 2026
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a Wajir county worker can sue directly over his retirement because the internal appeal process had already ended.

What this practically means

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Executive summary

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The Respondent, County Public Service Board of Wajir, raised a Notice of Preliminary Objection seeking to strike out the Petitioner's petition in limine. The Petitioner, a county public servant retired upon attaining 60 years of age, claims his retirement was unlawful because persons with disability retire at 65, and seeks declarations, certiorari, reinstatement, compensation and damages. The Respondent contended the suit was premature and an abuse of process for breaching the doctrine of exhaustion, citing Article 234(2)(i) of the Constitution, Sections 77, 85, 87(2) and 88 of the Public Service Commission Act and related provisions vesting exclusive appellate jurisdiction in the PSC, plus the six-month certiorari limitation under Section 9(3) of the Law Reform Act. The Petitioner countered that the dispute fell within the ELRC's jurisdiction under Article 162(2)(a), that the PSC's dismissal of his application for leave to appeal out of time on 8th October 2025 was a final determination leaving no further internal mechanism, and that the certiorari limitation was inapplicable since the petition was not brought under Order 53. The court framed a single issue: whether the preliminary objection was merited. Applying Mukisa Biscuit and Lillian S, it held the objection was largely wordy beyond the exhaustion and jurisdiction grounds. Relying on Suleiman v County Government of Isiolo, it held the ELRC's jurisdiction is determined by the subject matter of the dispute, not the remedies sought. Since the PSC's refusal of extension of time exhausted the internal process, the objection was dismissed, with costs abiding the outcome of the petition.

Questions the Court framed

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

  1. 1.Whether the Respondent's Notice of Preliminary Objection is merited

Key legal issues

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01

Whether the Petition is barred by the doctrine of exhaustion of statutory administrative remedies under Article 234(2)(i), the County Governments Act and the Public Service Commission Act

Holding

The Preliminary Objection fails; the PSC's dismissal of the Petitioner's application for leave to appeal out of time marked the end of the internal process, leaving the court as the only avenue.

Reasoning

The court acknowledged that the Petitioner did not invoke the internal dispute resolution mechanism within time. However, when he sought extension of time, the PSC declined the application on 8th October 2025. That refusal was a final determination of the internal mechanism, so the Petitioner's belated attempt to exhaust internal remedies had 'met its waterloo' and the only available option was to invoke the court's jurisdiction. The objection therefore lacked merit.

p. 10
02

Whether the ELRC has jurisdiction over the Petition given the PSC's exclusive appellate jurisdiction over county public service disputes

Holding

The ELRC has jurisdiction because the dispute concerns alleged violation of rights arising from an employment relationship; the PSC's jurisdiction does not extend to such claims.

Reasoning

Applying Suleiman v County Government of Isiolo, the court held that its jurisdiction under Articles 159(1), 162(2)(a), 165(5) and (6), 22(1) and 258(1) and the ELR Act spreads to all issues in the employment relationship, including enforcement of fundamental rights ancillary to employment. The test is the subject matter of the dispute, not the remedies sought or the procedure adopted.

p. 8
03

Whether the Preliminary Objection meets the Mukisa Biscuit threshold of a pure point of law

Holding

Other than exhaustion and jurisdiction, the objection is largely wordy and pleaded rather than a point of law.

Reasoning

The court adopted the classic definition of a preliminary objection from Mukisa Biscuit as quoted by the Supreme Court in Odinga v IEBC. It found that apart from the exhaustion and jurisdiction grounds, the objection was wordy and pleaded as opposed to law, and that the Respondent had raised disputed factual issues.

p. 8

Legal principles established

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  • The ELRC's jurisdiction is determined by the subject matter of the dispute (employment and labour relations), not by the remedies sought or the procedure used to move the court.

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 22nd May 2026 is dismissed
  2. 2.Costs shall abide the outcome of the Petition

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 (Employment and Labour Relations Court jurisdiction)

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.

Flowing from the foregoing it is discernible that the Respondent's Notice of Preliminary Objection dated 22nd May 2026 lacks merit and it is accordingly dismissed.
p. 10disposition - dismissal of preliminary objection
Costs shall abide the outcome of the Petition.
p. 10costs order
The court holds that the compass or golden test for the court's jurisdiction is the subject matter in the dispute namely disputes relating to employment and labour relations
p. 9ELRC jurisdictional test
The import of the commission's decision is that the Petitioners belated attempt to invoke the internal dispute resolution mechanism had met its waterloo and the only available option was to invoke the court's jurisdiction.
p. 10exhaustion - effect of PSC refusal of extension of time

Issues in the judgment

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minor

Date of retirement letter inconsistent: petition cites 4th August 2022, objection and submissions cite 4th August 2023.

minor

Typographical error in the ruling: 'Public Service common declined' instead of 'Commission'.

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, "Mohamed Osman Ahmed v County Public Service Board of Wajir & Wajir County Government", Case Analysis (2026). ELRC Petition No. E079 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2558/eng@2026-09-23

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