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ELRCDismissedCause No. E030 of 2026

Collins Agutu Odhiambo v The Secretary, County Public Service Board of Homa Bay & 2 others

Employment & Labour Relations Court of Kenya at Kisumu
30 September 2026
NMNzioki wa Makau
1,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed Homa Bay County's attempt to strike out a gratuity claim, confirming that objections requiring factual investigation cannot end a case early.

What this practically means

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Executive summary

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The Respondents raised a preliminary objection dated 24th June 2026 contending that the ELRC lacks jurisdiction over the Claimant's claim for unpaid gratuity of Kshs 3,749,760/-, invoking Article 234(1) of the Constitution, section 87(2) of the Public Service Commission Act and section 77 of the County Governments Act, and urging that the claim be struck out for failure to exhaust the PSC appellate mechanism. The Claimant opposed, arguing the objection failed the Mukisa Biscuit threshold because it required determination of contested facts concerning computation and payment of gratuity; that the claim sought enforcement of an accrued, quantified contractual entitlement rather than an appeal against an adverse employment decision; and that the PSC could not grant the monetary relief sought. Both parties filed written submissions. The court, Nzioki wa Makau J, applied the Mukisa Biscuit test and held that a preliminary objection cannot be raised where facts are to be ascertained; the gratuity computation was such a fact, and the Respondents had 'jumped the gun'. The objection was dismissed with costs to the Claimant, with directions on final disposal to follow. The court did not make definitive findings on jurisdiction or exhaustion, resting its decision on the threshold point alone.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection meets the threshold established in law
  2. 2.Whether this Court has jurisdiction to hear and determine the suit
  3. 3.Whether the Claimant has exhausted alternative dispute resolution mechanisms as required under the law
  4. 4.Whether the Claimant's suit is fatally defective and an abuse of the court process

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

It did not; the computation of gratuity is a fact to be ascertained, so the objection was premature and misplaced

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. Here the objection required examination of the gratuity computation, the contract and its legal effect, all evidentiary matters. The court therefore held the objection could not dispose of the suit in limine and dismissed it.

p. 12

Legal principles established

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  • A preliminary objection cannot be raised where facts have to be ascertained; it must be a pure point of law

Court orders

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  1. 1.The Preliminary Objection dated 24th June 2026 is dismissed with costs to the Claimant
  2. 2.Directions will follow on the steps towards final disposal of the claim

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NM
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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Respondents' prayer to strike out the claim with costs

The objection required ascertainment of facts (computation of gratuity) and therefore did not meet the Mukisa Biscuit threshold

p. 12

Costs

Objection is dismissed with costs to the Claimant.

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 preliminary objection cannot be raised where the facts are to be ascertained.
p. 12Mukisa Biscuit threshold
The preliminary objection taken is misplaced and will not lead to determination of the matter in limine.
p. 12Prematurity of objection
Objection is dismissed with costs to the Claimant.
p. 12Final orders

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, "Collins Agutu Odhiambo v The Secretary, County Public Service Board of Homa Bay & 2 others", Case Analysis (2026). Cause No. E030 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2721/eng@2026-09-30

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