[2022] KEELRC 422 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

PETITION NO. E008 OF 2021

IN THE MATTER OF

THE CONSTITUTION OF KENYA,

2010

AND

IN THE MATTER OF

THE COUNTY GOVERNMENTS

ACT, NO. 17 OF 2011

AND

IN THE MATTER OF

THE PUBLIC FINANCE

MANAGEMENT ACT, NO. 18 OF 2012

AND

IN THE MATTER OF THE EMPLOYMENT ACT, 2007

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION

OF THE CONSTITUTION

BETWEEN

DUNCAN OTIENO OUMA......................................1st PETITIONER

MILLER KEFA ATUYA ........................................2nd PETITIONER

v COUNTY GOVERNMENT OF NYAMIRA........1st RESPONDENT

GOVERNOR, NYAMIRA COUNTY..................2nd RESPONDENT

COUNTY SECRETARY, COUNTY

GOVERNMENT OF NYAMIRA....................... 3rd RESPONDENT

CHAIRPERSON, NYAMIRA COUNTY

PUBLIC SERVICE BOARD..............................4th RESPONDENT

SECRETARY, NYAMIRA COUNTY

PUBLIC SERVICE BOARD............................5th RESPONDENT

RULING

1. The 2 Petitioners sued the 5 Respondents on 26 January 2021, alleging that the termination of their contracts on 12 January 2021 by the County Public Service Board was unfair and violated their rights to fair administrative action, fair labour practices, amongst others.

2. When the Petition was placed before the Court on 8 February 2021, it directed that it be deemed as a Memorandum of Claim, and the Respondents were ordered to file Responses.

3. The Respondents filed a Response on 12 March 2021. It was contended therein that the suit should be dismissed because the Claimants had failed to exhaust alternative dispute resolution avenues provided for in the law (a jurisdictional question).

4. On 14 January 2022, the Claimants filed an Amended Petition 2022.

5. When the Cause next came up for directions on 24 January 2022, the Court directed the parties to file and exchange submissions on the jurisdictional question.

6. The Claimants filed their submissions on 1 March 2022 (should have been filed and served before 24 February 2022), while the Respondents’ submissions were not on record (the Respondents filed an Amended Response to the Amended Statement of Claim on 7 March 2022).

7. The Court has considered the pleadings and submissions.

8. The substratum of the Claimants’ action is the termination of their respective contracts on 12 January 2021.

9. Article 234(2)(i) of the Constitution, as read with sections 77(1) and (2)(c) & (e) of the County Governments Act, has placed upon the Public Service Commission the function of hearing appeals at the first instance from decisions made by a county public service board in the purported exercise of disciplinary powers, or removal of a person from the county public service.

10. Sections 85, 86 and 87 of the Public Service Commission Act mirror the provisions and give content to the provisions cited above.

11. Section 87(2) of the Public Service Commission Act expressly outlaws first instance court proceedings before the appellate procedure through the Public Service Commission is exhausted.

12. While admitting the relevance of the doctrine of exhaustion of alternative dispute resolution mechanisms, the Claimants asserted that there were exceptional circumstances in the instant case warranting the Court not declining jurisdiction.

13. The exceptional circumstances, it was urged, arose because of the constitutional nature of the dispute (alleged violations of the Constitution by the Respondents).

14. The Claimants also contended that the dispute did not concern the disciplinary control powers of the County Public Service Board as envisaged by section 77(1) of the County Governments Act.

15. The Claimants further submitted that the appellate procedure outlined in the County Governments Act and the Public Service Commission Act was optional and not mandatory.

16. The Claimants cited case law to bolster their contentions.

17. It is not in dispute that the termination of the Claimants contracts was not anchored in the exercise of the disciplinary control powers of the County Public Service Board.

18. The reason(s) given by the Respondents was that the contracts were tied to the tenure of the appointing Governor, who had died.

19. The termination, according to the Court, fell under sections 77(2)(c) and (e) of the County Governments Act, other removal from the county public service and, therefore, under the appellate power of the Public Service Commission.

20. On case law, the Court notes that the cases cited by the Claimants addressed other Acts and not section 77 of the County Governments Act.

21. The Court of Appeal in Speaker of the National Assembly v Karume (2008) 1 KLR 425 said of alternative dispute resolution:

Irrespective of the practical difficulties enumerated…… these should not, in our view, be used as a justification for circumventing the statutory procedure… in our view, there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.

22. Concerning section 77 of the County Governments Act, the Court of Appeal held in Secretary, County Public Service Board v Haulbhai Gedi Abdille (2017) eKLR:

There is no doubt that the Respondent initiated judicial review proceedings in utter disregard to the dispute resolution mechanisms availed by section 77 of the Act. The section provides not only the forum through which the Respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialised one specifically tailored by the legislators to meet the needs such as the Respondents. In our view, the most suitable and appropriate recourse for the Respondent was to invoke the appellate procedure under the Act rather than resort to the judicial proceedings in the first instance.

23. The Claimants did not demonstrate that they had attempted to use or exhaust the statutory appellate procedure set out in the law, and the Court declines jurisdiction.

24. The Cause is struck out with no order on costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 30TH DAY OF MARCH 2022.

RADIDO STEPHEN, MCIARB

Judge

Appearances

For Claimants: Muthoga and Omari Advocates

For 1st to 3rd Respondents Omwenga & Co. Advocates

For 4th and 5th Respondents Abincha, Mogambi, Advocate

Court Assistant Chrispo Aura