Saul Mogaka Onsare v County Government of Nyamira & another (Consolidated with Samwel Moseti Barongo v County Government of Nyamira & another)
The bottom line
#The Employment Court ruled that two Nyamira county employees could sue after the Public Service Commission dismissed their appeals without deciding them, and dismissed the county's objection with costs.
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 claim is admissible before this Court in light of the Public Service Commission's decision striking out the Claimant's appeal raising the same grievances
- 2.Whether the claim is admissible before this Court considering the mandatory provisions of sections 11, 14 and 15 of the Civil Procedure Act read together with sections 7 and 9 of the Magistrates' Courts Act (pecuniary and territorial jurisdiction)
Key legal issues
#Whether the preliminary objection on exhaustion of the statutory dispute-resolution mechanism was well founded
The objection failed: the Claimants had already taken the grievance to the PSC, which struck out the claims without a merits decision, so they had exhausted the mechanism and were not obliged to seek review or appeal.
Section 77 of the County Governments Act and sections 85, 86 and 87(2) of the Public Service Commission Act require county employment grievances to go to the PSC first. The Claimants did so, and the PSC's striking out was a perfunctory dismissal, not a decision on the merits. Section 88 review requires fresh material facts or error on the face of the record, which was not available, so the Claimants' recourse was this Court.
Whether the claim ought to have been filed in the Magistrates' Court at Nyamira on pecuniary and territorial grounds
The pecuniary jurisdiction objection was misplaced and was disposed of in favour of the Claimants.
The Claimants' monthly salary was Kshs. 159,630/-, above the Kshs. 80,000/- threshold in Gazette Notice No. 6024 of 22nd June 2018 conferring employment jurisdiction on magistrates' courts. The court noted that ascertaining salary would require scrutiny of payslips, a factual inquiry, but on the pleaded figures the claim fell within the ELRC's jurisdiction.
Whether the objection qualified as a proper preliminary objection raising pure points of law
The court applied the Mukisa Biscuit test; the exhaustion limb was a point of law and well taken for consideration, while the salary limb involved facts.
Relying on Spry VP and Sir Charles Newbold JA in Mukisa Biscuit, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The exhaustion doctrine qualified as an issue of law; the salary level was a mixed question of law and fact requiring scrutiny of payslips.
Legal principles established
#- Where the PSC has struck out a grievance without a decision on the merits, the claimant has exhausted the statutory mechanism and may approach the ELRC without seeking review or appeal of the PSC's decision.
- The exhaustion doctrine is a pure point of law that may properly be raised as a preliminary objection, whereas pecuniary jurisdiction based on salary level is a mixed question of law and fact.
Court orders
#- 1.The preliminary objection is dismissed with costs to the Claimants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Article 162(2) jurisdiction over employment and labour relations disputes
- Consolidated with
- Cause No. E008 of 2026 (Samwel Moseti Barongo v County Government of Nyamira & another)
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.
In my considered view, the objection as to pecuniary jurisdiction is misplaced and therefore one that is disposed of in favour of the Claimants.
As such, the preliminary objection taken is dismissed with costs to the Claimants.
The Claimants did not need to further review or seek to appeal the perfunctory dismissal of the claims by the Public Service Commission as there is no decision on the merits made.
A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
Issues in the judgment
#Court states the exhaustion objection 'is well taken' but later dismisses the whole preliminary objection in the Claimants' favour without reconciling the two positions.
Consolidated claimant named 'Samwel Moseti Barongo' in the title but the PSC appeal is cited as 'Samwel Mogaka Onsare'.
Both PSC appeals bear the same number, 143 of 2025, for two different claimants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saul Mogaka Onsare v County Government of Nyamira & another (Consolidated with Samwel Moseti Barongo v County Government of Nyamira & another)", Case Analysis (2026). Cause No. E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2589/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.