https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1463

Mwaeke v Governor Taita/Taveta County (Judicial Review E007 of 2025) [2026] KEELRC 1463 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1463 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Judicial Review E007 of 2025 K Ocharo, J May 21, 2026 Between Dr Panuel Jason Mwaeke Applicant and The Governor Taita/Taveta County Respondent Ruling 1.The Respondent raises a Preliminary Objection against the entire Judicial Review Application herein, setting out the following grounds: -1.The Judicial Review Application is misconceived and/or bad in law and therefore ought to be struck out.2.The Judicial Review Application is a non-starter and/or ill-advised as the Orders sought and the final prayers pleaded herein cannot issue for want of jurisdiction.3.The Judicial Review Application is a non-starter and ill-founded as it offends the doctrine and/or principle of exhaustion of alternative remedies.4.The Honourable Court is devoid of jurisdiction for reasons that the Judicial Review Application is in violation of express provisions of Article 243(2)(i) of the Constitution, Section 77 of the County Government Act and Section 87 of the Public Service Commission Act.5.The entire suit is bad in law, incompetent, frivolous & vexatious, and the same is otherwise an abuse of court process. For the above-mentioned reasons, the Judicial Review Application ought to be dismissed in its entirety with Costs. The Respondent’s Submissions. 2.The Respondent submits that the Applicant herein filed the Judicial Review Application, together with a motion under certificate dated 23rd April 2026, alleging that he has been employed by the Respondent as the CECM since 17th March 2023. 3.On 14th April 2026, the Applicant was issued with a show-cause letter accusing him of gross misconduct, abuse of office, corruption, and insubordination, accusations the Applicant contests. The Applicant contends that he was suspended from office, which suspension is in breach of Article 50(1) of the Constitution, Section 31 of the County Government Act, Section 41 of the Employment Act and Section 4(1) of the Fair Administrative Actions Act. 4.It is further submitted that the Judicial Review proceedings taken out are ill-founded in law and have been filed in a court that is devoid of jurisdiction, because they give rise to an employment dispute that is not only premature but ought to have been commenced in another forum rather than this court. The Claim is in violation of the doctrine of exhaustion of alternative remedies. 5.The Respondent submits that jurisdiction is everything, and where the Court has none, it should down its tools and proceed no more. To buttress this submission, the Respondent cites the case of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [19891 KLR 1 where Justice Nyarangi of the Court of Appeal held as follows'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. jurisdiction is everything. Without it, a court has no power to make one more step, where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 6.It is trite law that where legislation has provided a remedy and prescribed a clear procedure for redress of a particular grievance, a litigant cannot invoke the provisions of the Constitution or any other law for redress of that grievance. The Court will not entertain an issue when a matter may be properly determined on the basis of enacted statutes and legislation. 7.To support this point, reliance has been placed on Speaker of the National Assembly Vs Karume (2008) KLR 425, where the Court held;Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or the Act of Parliament, that procedure should be strictly followed. 8.Further reliance has been placed on the Court of Appeal decision in Geoffrey Muthinji & Another Vs Samuel Muguna Henry & 1756 Other (2015) eKLR held“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Court is invoked. Courts ought to be the last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanism in place of resolution outside the courts. This accords with Article 159 of the Constitution, which commands courts to encourage alternative dispute resolution.” 9.The Applicant has not exhausted the dispute resolution mechanism and/or procedures under Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, both of which require an employee aggrieved by a decision of the County Government to appeal that decision to the Public Service Commission. Article 234 (2)(i) of the Constitution of Kenya stipulates as follows;“The Commission shall hear and determine all appeals in respect of County Governments' Public Service.” 10.Section 77 of the County Government Act provides, in part, as follows: -a.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 (in this part referred to as the "Commission" against the decision.b.The Commission shall entertain appeals on any decision relating to the employment of a person in a county government, including a decision in respect ofi.Recruitment selection, appointment and qualifications attached to any. office.ii.Remuneration and terms and conditions of service.iii.Disciplinarily control.iv.National values and principles of governance under Article 10 & values.v.Retirement & other removal from servicevi.Pensions benefits, gratuity and any other terminal benefitsvii.Any other decisions that the commission considers to fall within its constitutional competence to hear and determine or appeal in that regard. 11.Further section 87 (2) of the Public Service Commission Act provides;A person shall not file any legal proceedings in any court of law with respect to matters within the jurisdiction of the commission to hear and determine appeals from the County Government Public Service Board unless the procedure provided under this part has been exhausted. 12.There is no dispute that the Applicant was suspended and asked to show cause why disciplinary action should not be taken against him. He is challenging the suspension's constitutionality and validity before this Court. He has approached this Court without first appealing the decision to the Public Service Commission. The Judicial Review Application herein was incompetently initiated. 13.To fortify the foregoing point, the Respondent places reliance on the Court of Appeal decision in Secretary County Public Service Board & another Vs Hulbhai Gedi Abdille (2017) eKLR, held as follows;“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute a party ought to pursue that avenue or forum and not invoke the Court process if the dispute could very well and effectively be dealt with in that other forum. Such a party ought to seek redress under the other regime. 14.In Republic Vs Migori County Secretary & another Migori County Public Service Board (interested party) Ngwala & 8 Others (Ex parte Applicants) Judicial Review Application No E013 of 2022 (2022) 13209 (KLR), the Court observed as follows;“Section 77(2)(e) of the County Government Act unreservedly gives the Public Service Commission of Kenya the mandate to entertain an appeal, including on a decision on retirement or other removal from the County Public Service. The provision does not restrict the appellate function to decisions made by a county public service board.This contracts with the provision in section 77(1) of the Act, which restricts the appellate power to decisions made by the Board or on its behalf in purported exercise of disciplinary control. In terms of Article 234(2)(i) of the Constitution, as read with section 77(2) of the County Government Act and Section 87(2) of the Public Service Commission Act, the ex parte applicants' first port of call should have been through an application to the Public Service Commission. The Applicant’s Submissions. 15.The Applicant submits that the instant Preliminary Objection by the Respondents is not merited and ought to be dismissed with Costs. 16.The provision, Article 234 (2) (i) of the Constitution, upon which the Respondent’s Preliminary Objection is anchored, does not support the objection. The provision provides that the Public Service Commission shall determine appeals from the decisions of the County Public Service Board. However, the provision cannot be read in isolation from other stipulations of the Article. Constitutional provisions should be interpreted conjunctively, not disjunctively. 17.Had the Respondent made an effort to read the Constitution as a whole, he ought to have discovered that Article 234 (2) (i) is not a one-size-fits-all provision. Article 234 (3) provides mandatory exceptions where Articles 234 (I) and (2) are not applicable, thereby depriving the Public Service Commission of the jurisdictional power to hear and determine appeals under those exceptions. Article 234[3][n] does not apply to State Officers.Article 260 of the Constitution is the Interpretation Section of the Constitution and it provides the interpretation of the following terms as follows:“Public officer" meansa.Any State Officer; orb.Any person, other than a State Officer, who holds a public office'“Public service" means the collectivity of all individuals, other than State Officers, performing a function within a state organ."State Office" means any of the following offices —(h)member of the County assembly, governor or deputy governor of a county, or other member of the executive committee of a County Government.State Officer means a person holding a State Office. 18.The Applicant submits that although a State Officer is a Public Officer, not all Public Officers are State Officers. A State Officer is a Public Officer Sui generis, not subject to the Public Service Commission as regards any challenge to how any disciplinary proceedings are being conducted against them. The first point of call for them before the Court is that the Applicant has done this matter. 19.It is undisputed that the Applicant was a County Executive Committee Member (CECM) in Taita/Taveta County, responsible for the Department of Education, Libraries, and Vocational Training Centres, at the time of his arbitrary suspension. Thus, he was part of the Executive of Taita-Taveta County, which is protected by Article 260(h) of the Constitution, as quoted above. 20.The Public Service Commission Act, which has been relied upon by the Respondent, does not support the Respondent’s preliminary objection. The Act gives the following definitions;“Public Officer" means any person other than a state officer who holds a public office."State office" has the meaning assigned to it in Article 260 of the Constitution. 21.A keen consideration of Section 87(2) of the Act reveals that the Public Service Commission does not have absolute jurisdiction to hear appeals and ring-fences only matters within its jurisdiction. Analysis and Determination 22.I have carefully considered the grounds advanced by the Respondent in the Notice of Preliminary Objection, the submissions by their Counsel in support of the preliminary objection, and the submissions by Counsel for the Applicant against the preliminary objection, and distilled a single issue for determination-whether the exhaustion doctrine militates against the Applicant’s proceedings in this case. 23.It is trite now and it has been emphasized in numerous judicial jurisprudence that where there exists other sufficient statutory mechanism for dispute resolution, such a mechanism ought not to by bypassed for the court resolution mechanism. The party seeking redress ought to first approach the seat of justice through such other mechanism. This accords with the stipulations of Article 159 of the Constitution. See Secretary County Public Service Board & another v Hulbhai Gedi Abdille [ 2017] eKLR. 24.I agree with Counsel for the Respondent’s submissions, that the architecture of the dispute resolution mechanism provided under Section 77 of the County Governments Act, envisions that the first avenue to be pursued by a person challenging a decision of the County Public Service Board, must be by an appeal to the Public Service Commission, who shall then exercise jurisdiction over the appeal under the provisions of section 87 of the Public Service Commission Act, and Article 234 of the Constitution. 25.However, I am not persuaded that the provisions mentioned above applies to every decision in respect of a person working with a County Government, no matter what his role is or whose decision forms the subject matter of the grievance or to whose disciplinary control power they are subject to. Any such conclusion would be defiant to a not piecemeal reading of the relevant stipulations of the County Governments Act and the Constitution of Kenya, 2010. 26.Undeniably, the Applicant is a County Executive Committee Member of the County Government of Taita Taveta, thus appointed to that role under Part V of the County Governments Act, and subject to removal/ disciplinary action as provided for under Section 40[1] & [2] of the Act. The County Executive Committee Members, in my view, are not subject to the provisions of Part VII of the Act. They are not subject to the disciplinary control powers of the County Public Service Board. Section 77 of the Act, which deals with appeals against the decisions of the Board does not apply to them. 27.It is not contended that the impugned decision was a decision of the County Public Service Board. In fact, it is clear from the suspension letter that it was a decision of the Governor. 28.The preliminary objection did not look at the matter from the foregoing perspective, and even with regard to the explicit provisions of the whole of Article 234 of the Constitution of Kenya which could have easily revealed to the Respondent that there are people who are constitutionally excepted from the jurisdiction of the Public Service Commission. 29.By reason of the foregoing premises, I find the preliminary objection lacking in merit. It is hereby dismissed. READ, SIGNED AND DELIVERED THIS 21ST MAY 2026.OCHARO KEBIRAJUDGE.