County Government of Uasin Gishu & 4 others v Lelei (Employment and Labour Relations Appeal E014 of 2025) [2026] KEELRC 2136 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E014 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **THE COUNTY GOVERNMENT OF** **UASIN GISHU……………………………………….…. 1ST APPELLANT** **COUNTY PUBLIC SERVICE BOARD,** **UASIN GISHU……………………………………..…….2ND APPELLANT** **THE CHIEF OFFICER,** **PUBLIC SERVICE MANAGEMENT.** **COUNTY GOVERNMENT OF UASIN GISHU…….3RD APPELLANT** **THE CHIEF OFFICER,** **ROADS, TRANSPORT AND PUBLIC WORKS** **COUNTY GOVERNMENT OF UASIN GISHU…...4TH APPELLANT** **THE CHIEF FIRE OFFICER,** **COUNTY GOVERNMENT OF UASIN GISHU…….5TH APPELLANT** **VERSUS** **BARNABAS LELEI……………………………………… RESPONDENT** *(Being an appeal from the entire Ruling of the Honourable Peter Areri, Senior Principal Magistrate delivered on 31st January 2025 in Eldoret CMELRC No. 226 of 2024) Barnabas Lelei vs County Government of Uasin Gishu & 4 Others)* **JUDGMENT** 1. This Appeal arises from a ruling by the trial court in Eldoret CMELRC No. E226 of 2024 delivered on the 31st January 2025. 2. A brief background is that vide a Statement of Claim dated 10th July 2024, the Respondent sued the Appellants seeking compensation for alleged unlawful termination of his employment. 3. The Appellants filed a Memorandum of Appearance dated 23rd August 2024. Thereafter the Appellants filed a Notice of Preliminary Objection dated 23rd August, 2024 in which it raised four grounds of preliminary objection to wit: 4. The suit offends the provisions of Section 74(1) of the Public Service Commission Act, No. 10 of 2017 and Paragraph 10 of the Public Service Commission (County Appeals Procedures) Regulations 2022 where the Claimant has failed to invoke internal dispute resolution mechanisms before moving this Honorable Court. 5. The claim is fatally and incurably defective in law and substance and ought to be struck out with costs for failing to comply with the mandatory provisions of Section 77(2) of the County Governments Act, No.17 of 2012. 6. In view of the doctrine of exhaustion of internal dispute resolution mechanisms, the jurisdiction of this court has been prematurely invoked. 7. The suit amounts to an abuse of the court process and thus the same ought to be struck out with costs in the first instance to the Respondents. 8. The trial court gave directions for the preliminary objection to be disposed of by way of written submissions which both parties filed. By a ruling delivered on the 31st January 2025, the court dismissed the preliminary objection. It is this ruling that is the subject of the instant appeal. 9. The Appellant being dissatisfied with the ruling of the trial court lodged the instant appeal vide the Memorandum of Appeal dated 20th February 2025 on the following grounds of appeal: 10. That the trial magistrate erred in law and in fact by failing to observe and find that the trial court lacked jurisdiction to entertain the claim pursuant to section 77 of the County Government Act No. 17 of 2012 and section 87 of the Public Service Commission Act. 11. That the trial magistrate erred in law and in fact by failing to observe and find that jurisdiction of the Court ought to have been invoked pursuant to compliance with section 85 and 87(2) of the Public Service Commission Act, 2017 12. That the trial magistrate erred in law and in fact by holding that the trial court had jurisdiction to entertain the matter at the first instant. 13. That the trial magistrate erred on the law and fact generally 14. The Appellant prayed that this Appeal be allowed with costs and the court to set aside the ruling dated 31st January 2025 and substitute it by striking out the suit with costs to the Appellant. 15. The appeal was disposed of by way of written submissions. The Appellants submissions are dated 27th February 2026. The Respondent’s submissions are dated 30th April 2026. **The Appellants submissions** 1. In their submissions, the Appellants summarized the grounds of appeal into the following issues: - 2. Jurisdiction as a threshold issue 3. Doctrine of exhaustion of administrative remedies 4. Constitutional and statutory framework governing county public officers 5. On the issue of jurisdiction, the Appellants submitted that jurisdiction is a fundamental prerequisite to the exercise of judicial authority and that where a court lacks jurisdiction, it must immediately down its tools. In support of that proposition, reliance was placed on the decisions in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1*** and ***Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR.*** The Appellants submitted that the law is now settled that jurisdiction flows from either the Constitution or statute and cannot be assumed by a court. 6. The Appellants argued that the Respondent approached the trial court prematurely without first exhausting the dispute resolution mechanisms established under the Constitution and statute. It was submitted that Section 77 of the County Governments Act confers upon the Public Service Commission appellate jurisdiction over decisions of County Public Service Boards and over decisions made in the exercise of disciplinary control against county public officers. Counsel drew the Court's attention to the provisions of Section 77(2) of the Act which empower the Commission to entertain appeals relating to recruitment, selection, appointment, qualifications attached to office, remuneration, terms and conditions of service, disciplinary control, retirement, removal from service, pension benefits, gratuity and other employment-related decisions affecting county public officers. 7. According to the Appellants, Article 234(2)(i) of the Constitution similarly vests the Public Service Commission with the mandate of hearing and determining appeals arising from decisions relating to employment in the public service. It was therefore submitted that the dispute before the trial court fell squarely within the jurisdiction of the Public Service Commission and that the trial court lacked primary jurisdiction to entertain the matter before the statutory appellate process had been invoked and exhausted. 8. On the doctrine of exhaustion of administrative remedies, the Appellants submitted that Section 87(2) of the Public Service Commission Act expressly prohibits the institution of legal proceedings in respect of matters falling within the jurisdiction of the Public Service Commission unless the procedures prescribed under the Act have first been exhausted. They contended that the provision is couched in mandatory terms and leaves no room for litigants to bypass the Commission and proceed directly to court. 9. The Appellants relied on the decision in ***Speaker of the National Assembly v Karume [1992] KLR 21*** for the proposition that where the Constitution or statute establishes a procedure for redress of a grievance, that procedure must be strictly followed. They further cited ***Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR***, where the Court of Appeal emphasized that courts ought to be fora of last resort and not the first port of call where Parliament has established specialized dispute resolution mechanisms. 10. Reliance was also placed on the decision in ***Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR*** in which the Court of Appeal held that where a dispute falls within the mandate of the Public Service Commission, the Employment and Labour Relations Court lacks jurisdiction unless and until the statutory appellate process has been exhausted. The Appellants submitted that the principles enunciated in that decision apply with equal force to the present dispute. 11. The Appellants contended that the Respondent moved the trial court without first invoking the appellate jurisdiction of the Public Service Commission notwithstanding that the issues raised in the suit fell squarely within the Commission's mandate. They argued that no exceptional circumstances were demonstrated to justify bypassing the statutory mechanism established under the County Governments Act and the Public Service Commission Act. 12. It was further submitted that by approaching the court before exhausting the available statutory remedies, the Respondent offended the doctrine of exhaustion and invited the court to exercise a jurisdiction that had not crystallized. In the Appellants' view, the proper forum for the dispute in the first instance was the Public Service Commission and, consequently, the suit was premature. 13. The Appellants therefore faulted the learned trial magistrate for failing to appreciate that the question of exhaustion was a jurisdictional issue, for failing to apply the mandatory provisions of Section 77 of the County Governments Act and Section 87 of the Public Service Commission Act, and for assuming jurisdiction contrary to the statutory framework governing county public service disputes. They further submitted that the learned magistrate erred by converting what was a pure point of law into a factual inquiry contrary to the principles laid down in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.*** 14. In addition, the Appellants submitted that the Respondent neither demonstrated that the statutory mechanism before the Public Service Commission was unavailable nor established that it was ineffective or incapable of granting an adequate remedy. Further, that no exceptional circumstances were shown to exist so as to warrant bypassing the statutory dispute resolution process. In support of this position, the Appellants relied on the case of ***Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR***, where the Supreme Court affirmed that courts should only intervene in exceptional circumstances where alternative dispute resolution mechanisms exist. 15. In conclusion, the Appellants submitted that the trial court arrogated to itself jurisdiction where none existed and that jurisdiction cannot be conferred by acquiescence, convenience or sympathy. They therefore urged this Court to allow the appeal, set aside the ruling of the trial court, uphold the preliminary objection, strike out the claim for want of jurisdiction and award the costs of the appeal and the proceedings before the subordinate court to the Appellants. **The Respondent’s submissions** 1. For the Respondent, the issues identified for determination are: - 2. Whether the trial court had jurisdiction to hear and determine the Respondent’s claim 3. Whether the appeal has merit 4. On the first issue, the Respondent submitted that the dispute before the trial court concerned rights and obligations arising from an employer-employee relationship and therefore fell squarely within the mandate of employment and labour relations disputes. 5. Relying on the decision in *Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd* [1989] KLR 1, the Respondent acknowledged that jurisdiction is fundamental and that a court lacking jurisdiction must immediately down its tools. 6. The Respondent submitted that Article 162(2)(a) of the Constitution establishes a specialized court with the status of the High Court to hear and determine disputes relating to employment and labour relations. 7. The Respondent further submitted that Section 12 of the Employment and Labour Relations Court Act vests the Employment and Labour Relations Court with jurisdiction to hear and determine employment and labour relations disputes. The Respondent also contended that the law permits designated magistrates to hear and determine employment disputes within the limits prescribed by law. 8. According to the Respondent, the courts have consistently held that the designation of magistrates to hear employment and labour relations matters does not oust the jurisdiction of the Employment and Labour Relations Court but rather lawfully extends limited jurisdiction to such magistrates to determine qualifying disputes. 9. The Respondent submitted that the claim before the trial court arose directly from an employer-employee relationship and sought reliefs incidental thereto. Consequently, the dispute fell within the employment and labour relations jurisdiction contemplated under Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act. 10. It was therefore argued that the trial court was properly seized of jurisdiction and that the Appellants' challenge to its jurisdiction was devoid of merit. 11. On the issue whether the appeal has merit, the Respondent submitted that the appeal lacks merit and is founded on an erroneous understanding of the law governing the jurisdiction of magistrates' courts in employment and labour relations matters. 12. According to the Respondent, the law expressly permits duly designated magistrates to hear and determine employment disputes within the prescribed statutory limits. In this regard, the Respondent submitted that the issue for determination before the trial court was whether the dispute before the subordinate court constituted an employment and labour relations dispute and whether the trial court possessed the requisite jurisdiction to hear it. 13. The Respondent submitted that his claim arose directly from an employer-employee relationship and sought remedies for the alleged unfair termination. It is contended that the dispute therefore fell squarely within the category of claims contemplated under the Employment and Labour Relations Court Act. 14. The Respondent further submitted that the Appellants had failed to demonstrate, by reference to any statutory provision, designation instrument, pecuniary limitation, or the pleadings on record, that the learned trial magistrate acted outside the scope of the jurisdiction conferred by law. 15. The Respondent therefore maintained that the Appellants had failed to establish any error of law, excess of jurisdiction, or misdirection on the part of the learned trial magistrate warranting the intervention of this Court. 16. In the circumstances, the Respondent urged the Court to find that the appeal is misconceived, devoid of merit and intended only to delay the determination of the claim before the trial court. 17. Accordingly, the Respondent prayed that the appeal be dismissed with costs. **Analysis and Determination** 1. This being a first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See ***Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123***. 2. Having considered the grounds of appeal, the submissions on record and the trial court’s ruling that is the subject of the appeal, the only issue that presents itself for determination in the instant appeal is whether the learned trial Magistrate erred in dismissing the Appellants preliminary objection. 3. The Appellants' objection before the trial court was founded on the contention that the Respondent's claim arose from an employment relationship within the county public service and that, before approaching the court, the Respondent was required to first invoke and exhaust the appellate mechanism established under Section 77 of the County Governments Act. The Appellants further contended that, by virtue of Article 234(2)(i) of the Constitution and Section 87(2) of the Public Service Commission Act, the Public Service Commission possessed primary jurisdiction over the dispute and that the suit was therefore prematurely instituted. 4. The learned trial magistrate in dismissing the preliminary objection held that it was properly seized of jurisdiction. 5. The question for determination is therefore whether, in the circumstances of this case, the dispute fell within the exclusive appellate mandate of the Public Service Commission and, if so, whether the Respondent was obligated to exhaust that mechanism before invoking the jurisdiction of the court. 6. Section 77(1) of the County Governments Act provides: -. *“1) Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the “Commission”) against the decision. (2) The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of—* *(a)recruitment, selection, appointment and qualifications attached to any office;* *(b)remuneration and terms and conditions of service;* *(c)disciplinary control;* *(d)national values and principles of governance, under Article 10, and values and principles of public service under Article 232 of the Constitution;”* 1. Similarly, Article 234(2)(i) of the Constitution empowers the Public Service Commission to hear and determine appeals in respect of county government public service matters, while Section 87(2) of the Public Service Commission Act provides that no legal proceedings shall be commenced in respect of matters within the Commission's jurisdiction unless the procedures prescribed under the Act have first been exhausted. 2. Section *85. Appeal from County Government public service* *The Commission shall, in order to discharge its mandate under Article 234(2)(i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of—* *(a) recruitment, selection, appointment and qualifications attached to any office;* *(b) remuneration and terms and conditions of service;* *(c) disciplinary control;* *(d) national values and principles of governance, under Article 10 and values and principles of public service under Article 232 of the Constitution;* *(e) retirement and other forms of removal from the public service;* *(f) pension benefits, gratuity and any other terminal benefits; or* *(g) any other decision the Commission considers to fall within its constitutional competence to hear and determine an appeal in that regard* 1. The jurisprudence emerging from the superior courts has consistently affirmed the importance of the doctrine of exhaustion. In ***Speaker of the National Assembly v Karume* [1992] KLR 21,** the Court of Appeal held that where the Constitution or statute provides a dispute resolution mechanism, that mechanism ought to be strictly followed. The same principle was reiterated in **Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR**, where the Court emphasized that courts should be fora of last resort and not the first port of call where Parliament has established alternative dispute resolution mechanisms. 2. It is equally settled that the applicability of the doctrine of exhaustion depends on the nature of the dispute presented before the court. A party invoking the doctrine must demonstrate that the dispute falls within the scope of the alternative mechanism and that the alternative forum is capable of granting the relief sought. The court must therefore interrogate the pleadings before it to ascertain whether the dispute is one that properly falls within the mandate of the Public Service Commission. 3. The jurisdiction conferred upon the Public Service Commission under Article 234(2)(i) of the Constitution, Section 77 of the County Governments Act and Section 87 of the Public Service Commission Act is not intended to completely displace the constitutional and statutory mandate of the Employment and Labour Relations Court. Rather, the Commission exercises an appellate and administrative oversight role in disputes falling within the categories specifically identified by statute. 4. Section 9 of the Fair Administrative Action Act further provides: *9. Procedure for judicial review* *(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.* *(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.* *(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).* *(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.* *(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.* 1. The Respondent in his Statement of Claim, challenged the legality and fairness of the termination of his employment and sought remedies ordinarily available under the Employment Act. The claim raised questions relating to alleged unlawful termination, fairness of the process leading to the termination and the attendant employment remedies. Such disputes fall within the broad jurisdiction conferred upon the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. 2. However, section 77 of the County Governments Act and section 85 of the Public Service Commission Act both require that employees of County Governments first appeal against the decisions of the county government to the Public Service Commission. The wording of the sections are couched in mandatory terms. A person who wishes to bypass the appeal process in the two sections must seek exemption from the court as provided in section 9(4) of the Fair Administrative Action Act, which unfortunately the Respondent did not do. 3. The jurisprudence from the courts are clear that where Parliament has established a specialized dispute resolution mechanism, that process must be exhausted before a party can approach the courts. 4. I accordingly find merit in the preliminary objection filed by the Appellant in the trial court and find that the court erred in dismissing the same. 5. Consequently, I find that the learned trial magistrate erred in holding that the court had jurisdiction to hear and determine the instant suit. 6. I accordingly make the following orders: 1. The appeal herein is allowed; 2. The decision of the trial magistrate delivered on 31st January 2025 in Eldoret CMELRC No. 226 of 2024 is hereby set aside; 3. The preliminary objection dated 23rd August, 2024 filed by the Appellant dated is hereby upheld 4. The Respondent’s suit filed via Eldoret CMELRC No. 226 of 2024 dated 23rd August, 2024 is hereby struck out; 5. Each party shall bear its costs both in this court and in the Magistrates court. 6. The Respondent is at liberty to approach the Public Service Commission to appeal against the decision of the Appellant as this court and the magistrates court have not made a merit determination in his case, provided that the Commission agrees to hear the same out of time. 7. This appeal was heard contemporaneously with the appeals No. EOO6 of 2025, E007 of 2025, EOO8 of 2025, E009 of 2025, E010 of 2025, E011 of 2025, E012 of 2025, E013 of 2025, E015 of 2025, E016 of 2025, E017 of 2025, E018 of 2025 and E019 of 2025 arising from the appeals raise substantially similar jurisdictional questions founded on an identical factual and statutory framework. Accordingly, and to avoid unnecessary repetition, the findings and orders made herein shall apply mutatis mutandis to the said appeals. 8. Orders accordingly. **DATED, SIGNED AND DELIVERED ON** **THIS 18TH DAY OF JUNE, 2026** **MAUREEN ONYANGO** **JUDGE**