Saul Mogaka Onsare v County Government of Nyamira & another (Consolidated with Samwel Moseti Barongo v County Government of Nyamira & another)

NYAMIRA COUNTY PUBLIC SERVICE BOARD………………………………………….……….2ND RESPONDENT RULING 1. Vide Memorandums of Claim dated 22nd April 2026 the Claimants impleaded the Respondents seeking unpaid salary and alleging unfair labour practices. 2. In response, the Respondents filed Memorandum of Responses and Counterclaim dated 17th June 2026, together with a Preliminary Objections of even date. The Respondents contend that the suits are defective and constitutes an abuse of the court process on the following grounds: (a) This court lacks jurisdiction by virtue of Article 234(2) (i) of the Constitution, section 77 of the County Governments Act, 2012, and sections 85, 86 and 87(2) of the Public Service Commission Act, 2017, which require grievances involving County employees’ employment to be presented in the first instance to the Public Service Commission. Page 2 of 11

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(b) That the Claimants neither challenged nor invoked the appellate or review process in respect of the decision of the Public Service Commission in PSC County Appeal No. 143 of 2025, Saul Mogaka Onsare v Nyamira County Public Service Board and PSC County Appeal No. 143 of 2025, Samwel Mogaka Onsare v Nyamira County Public Service Board and cannot properly reintroduce before this Court claims that were not substantiated before the Commission. (c) That the suits contravene sections 11, 14 and 15 of the Civil Procedure Act, read together with sections 7 and 9 of the Magistrates’ Courts Act, since the Respondents are domiciled in Nyamira, the cause of action arose in Nyamira, and there is a Magistrates’ Court in Nyamira with jurisdiction pursuant to section 29 of the Employment and Labour Relations Court Act. 3. The Preliminary Objection was canvassed by way of written submissions. Respondents’ Submissions Page 3 of 11

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4. In support of the Preliminary Objection, the Respondents identify two issues for determination, namely: (i) 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; and (ii) Whether the instant 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. 5. On the first issue, the Respondents submit that the claim is inadmissible because the grievances raised herein had previously been struck out before the Public Service Commission (PSC) via PSC County Appeal No. 143 of 2025, Saul Mogaka Onsare v Nyamira County Public Service Board. They contend that the Claimant has neither appealed nor sought review of the decision, hence it remains valid, binding and unassailed. They argue that the Claimant cannot circumvent the PSC’s decision by re-litigating the same grievances before this Court. In support, they rely on Page 4 of 11

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Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) for the principle that where statute prescribes a dispute resolution procedure, it must be strictly followed. They further rely on Mbithi v Makueni County Public Service Board & another [2026] KEELRC 12 (KLR) to submit that challenges to PSC decisions lie through appellate or review proceedings to the ELRC, and Mwangi v Public Service Commission & 2 others [2024] KEELRC 790 (KLR) in support of the contention that a decision of the PSC that has not been vacated remains effective and binding notwithstanding subsequent judicial proceedings. 6. On the second issue, the Respondents submit that the claim ought to have been instituted before the Magistrates’ Court at Nyamira because; the claim falls within the pecuniary jurisdiction of the Magistrates’ Court under sections 7 and 9 of the Magistrates’ Courts Act, the Respondents are domiciled in Nyamira County, the cause of action arose within Nyamira County, and there is a Chief Magistrates’ Court at Nyamira with employment and labour relations jurisdiction pursuant to section 29 of the Employment and Page 5 of 11

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Labour Relations Court Act and Gazette Notice No. 6024 of the 22nd June 2018. 7. They therefore submit that, in the absence of any special circumstances justifying the institution of the suit before this Court, the claim offends sections 11, 14 and 15 of the Civil Procedure Act, read together with sections 7 and 9 of the Magistrates’ Courts Act. Consequently, they urge the Court to strike out the claim with costs for being defective ab initio and amounting to an abuse of the court process. Claimant’s Submissions 8. The Claimant submits that the Preliminary Objection does not raise pure points of law as contemplated in the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] 1 KLR 141. She contends that whether the PSC’s decision to strike out her appeal amounted to exhaustion of the statutory dispute-resolution mechanism under section 77 of the County Governments Act, requires interrogation of evidence. Page 6 of 11

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9. On jurisdiction, the Claimant submits that she complied with the doctrine of exhaustion by lodging an appeal before the PSC which was subsequently struck out for being filed out of time. She contends that under section 88 of the Public Service Commission Act the PSC can only entertain a review where there are fresh material facts or an error on the face of the record. She therefore contends that she did not meet the threshold for review and her only recourse was to approach this court. She relies on Busia County Public Service Board v Public Service Commission & another [2025] KEELRC 3014 (KLR), in which it was held that not every PSC decision is appealable. She consequently maintains that she exhausted the available administrative mechanism thus this Court remains the appropriate forum for determination of her grievances. She relies on Evans Ogutu Ouma v Migori County Public Service Board & another [2026] KEELRC 1100 (KLR). 10. On the Respondents’ contention that the suit ought to have been filed before the Magistrates’ Court, the Claimants submit that the monthly salary was Kshs. 159,630/- thus the Page 7 of 11

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claim falls within this Court’s jurisdiction. The Claimants consequently urges the Court to dismiss the Preliminary Objection with costs. Disposition 11. The objection raised is to the effect that this Court lacks jurisdiction on account of the exhaustion doctrine. The Claimants on their part assert the jurisdiction of the court is properly invoked and that there is no proper preliminary objection before me. On the basis of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra) the Court of Appeal demarcated what qualifies as a preliminary objection. In the case, the Court held that per Spry VP: “So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. Page 8 of 11

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Further in the same judgment, Sir Charles Newbold, JA stated that:“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. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection is deprecated. [Emphasis supplied] 12. The exhaustion doctrine is an issue of law. It can be raised in opposition to a suit. The fact of salary payment at a certain level is a mixed question of law and fact. It would be a factual inquiry to ascertain the amount paid per month. It would require the payslips to be scrutinized. However, the level of filing of the suit would be determined through a look at the Gazette Notice Legal Notice No. 6024 of the 22nd June 2018 which donated jurisdiction of employment matters where the gross monthly salary is less than Kshs. 80,000/-. In Page 9 of 11

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my considered view, the objection taken, when viewed in these lenses shows it is well taken. 13. The Claimants sought the interposition of the Public Service Commission which struck out the claims. The first step as argued by the Respondent is to have a reference to the Public Service Commission in terms of section 77 of the County Governments Act, 2012, and sections 85, 86 and 87(2) of the Public Service Commission Act, 2017, which require grievances involving County employees’ employment to be presented in the first instance to the Public Service Commission. This was demonstrably done and the Respondent repeatedly adverts to this when it references the striking out by the Public Service Commission. In my view, the Claimants had exhausted that mechanism and could therefore approach this Court. 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. 14. The Claimants were well suited in seeking the reliefs enumerated in the memorandum of claim before this Court Page 10 of 11

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as the claims relate to employment and labour law issues only this Court can handle as a primary court. There would be other tiers of the justice chain that can handle the ensuing appeals right up to the apex court if a matter of public concern is discernible and in if the issue is one for the Court in terms of the Rules of that Court. 15. 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 regards the other aspect of the objection, the Claimants were not bound by the law in place to seek a review or appeal the decision of the PSC. As such, the preliminary objection taken is dismissed with costs to the Claimants. It is so ordered. Dated and delivered at Kisii this 28th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 11 of 11

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