Kenya National Union of Medical Laboratory Officers v County Government of Siaya & another

a. Whether the Preliminary Objection meets the requisite threshold; and b. Whether the Court has original jurisdiction to determine the Petition. 5. On whether the Preliminary Objection meets the requisite threshold, the Respondents submit that it raises a pure point of law concerning the Court’s jurisdiction and is capable of disposing of the Petition without the introduction or determination of disputed facts. They rely on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 in support of this proposition. 6. On jurisdiction, the Respondents submit that the Petition was prematurely instituted because the Petitioners have not exhausted the dispute resolution mechanism under Article 234(2)(i) read with Article 159(2)(c) of the Constitution and section 77 of the County Governments Act and section 85 of the Public Service Commission. They assert that disputes concerning recruitment, remuneration, and terms and conditions of service fall within the mandate of the Public Service Commission and that it is the rst forum to which an aggrieved party ought to appeal. In support of their position, reliance is placed on Georey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, for the proposition that statutory alternative dispute-resolution mechanisms must ordinarily be exhausted before court proceedings are commenced, and on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, which underscored that where the Constitution or statute prescribes a clear procedure for redress, that procedure should be strictly followed. The Respondents further rely on Secretary, County Public Service & another v Hulbhai Gedi Abdille [2017] eKLR, for the argument that section 77 provides a specialised appellate mechanism before the Public Service Commission which must be invoked before recourse to the Court, and on the decision in the case of Martin Kabubii Mwangi v County Government of Laikipia [2019] eKLR, for the proposition that the exhaustion principle does not permit a litigant to elect whether to utilise the statutory mechanism under section 77. 7. The Respondents maintain that the alleged violation of Article 41 of the Constitution does not, by itself, justify bypassing the existing statutory mechanisms under section 77 of the County Governments Act and section 85 of the Public Service Commission Act. Reliance is placed on Antony Miano & others v Attorney General & others [2021] eKLR, where the Court held that constitutional issues may, in appropriate circumstances, await determination by the specialised statutory tribunal where no exception to the exhaustion doctrine has been demonstrated. The Respondents maintain that the Petitioners have neither demonstrated that they invoked nor exhausted the mechanism under section 77 nor explained why that mechanism was unavailable, inappropriate, or incapable of addressing their grievances. They therefore submit that, in the absence of a demonstrated exception to the doctrine of exhaustion, the Petition is liable to be struck out. They further contend that the Court’s general or unlimited jurisdiction in employment matters does not dispense with a mandatory statutory procedure enacted in furtherance of Article 159(2)(c) of the Constitution. In this regard, they rely on Ishmael Noo Onyango & another v Siaya County Public Service Board & another [2018] eKLR, which, drawing on Mayers and Another v Akira Ranch Limited [1972] EA 347, Narok County Council v Transmara County Council [2000] 1 EA 161, and Stephen Wanyee Roki v Kenya Airports Authority, HCCC No. 162 of 2001, armed that a prescribed statutory procedure for redress must be strictly followed notwithstanding the Court’s jurisdiction over employment matters. They therefore urge the court to decline jurisdiction, and to dismiss the Petition with costs. Petitioner’s Submissions 8. The Petitioner submits that the Preliminary Objection falls short of the requisite threshold because the issue of exhaustion raised by the Respondents requires the ascertainment of disputed facts. Relying https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2615/eng@2026-09-28 2

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on the denition in Black’s Law Dictionary, 10th Edition, and Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, it contends that a preliminary objection must raise a pure point of law arising from the pleadings, argued on the assumption that the opposing party’s facts are correct, and which may dispose of the suit without requiring evidence or the exercise of judicial discretion. They further rely on Awino & 7 others v Inspector General of Police & 3 others [2024] KESC 8623, for the proposition that a preliminary objection must not be blurred with factual details liable to contestation. 9. On the doctrine of exhaustion, the Petitioner maintains that it is misleading for the Respondents to allege that the available dispute-resolution mechanisms were not exhausted. It points to its engagement with the Respondents through consultations and negotiations, which culminated in the execution of a Return to Work Agreement on 19th November 2025, in an eort to resolve the outstanding disputes. The Petitioner further points out that the dispute was subjected to conciliation under section 62 of the Labour Relations Act, culminating in the issuance of a Certicate of Unresolved Trade Dispute dated 23rd April 2026. Flowing from the foregoing, the Petitioner contends that the Preliminary Objection constitutes an abuse of the Court process, as it seeks to divert the Court from determining the substantive issues concerning the protection of its members’ constitutional rights and the Respondents’ alleged failure to implement their undertakings under the Resolution Agreement and the signed Return to Work Formulas. The Petitioner therefore urges the court to dismiss the Preliminary Objection with costs. Disposition 10. The preliminary objection is to the eect that the Petitioner herein has not exhausted the mechanism for dispute resolution prescribed under the County Governments Act which requires an appeal to the Public Service Commission. In opposition to this line of argument, the Petitioner asserts the matter was not for the Public Service Commission as the dispute between the parties was subjected to conciliation under section 62 of the Labour Relations Act, culminating in the issuance of a Certicate of Unresolved Trade Dispute dated 23rd April 2026. The Petitioner asserts the preliminary objection is an abuse of the Court process. 11. When a matter is conciliated under the Labour Relations Act and a conciliation report or certicate of non-resolution in terms of section 62 of the Act is issued, the Public Service Commission cannot be a party to the next step as it is only this Court that has jurisdiction. One cannot take a certicate issued by the Conciliator to the PSC. The proper port of call is this Court in terms of section 62. The preliminary objection raised is therefore an abuse of the court process. It is accordingly dismissed with costs to the Petitioner. Directions on disposal of the Petition will follow this Ruling. It is so ordered. DATED AND DELIVERED AT KISII THIS 28TH DAY OF SEPTEMBER 2026 NZIOKI WA MAKAU, MCIARB. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2615/eng@2026-09-28 3

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