https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1477

Mbae & another v Ndegwa & 3 others (Petition E004 of 2026) [2026] KEELRC 1477 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1477 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E004 of 2026 J Rika, J May 29, 2026 Between Dr. Peter Mbae 1st Petitioner Laban Omusundi 2nd Petitioner and Joyce N. Ndegwa 1st Respondent The Nakuru County Public Service Board 2nd Respondent County Government of Nakuru 3rd Respondent The Governor County Government Of Nakuru 4th Respondent Ruling 1.In their Petition dated 20th January 2026, the Petitioners describe themselves as adult Kenyan citizens, who come to Court in public interest, to protect the supremacy of the Constitution, the rule of law, and integrity in the county public service. 2.They state that the 1st Respondent was appointed Secretary / Chief Executive Officer of the 3rd Respondent for a fixed term of 6 years, which expired on 1st August 2025. 3.The 4th Respondent illegally extended the contract to 28th August 2028, a period of 3 years. 4.The Petitioners pray the Court to declare extension unconstitutional, unlawful, null and void; declare that decisions made by the 1st Respondent after expiry of the contract are null and void; an order of certiorari quashing the extension; an order of mandamus compelling the 3rd Respondent to reconstitute the 2nd Respondent and undertake fresh recruitment; an order compelling the 1st Respondent to refund salaries and allowances earned since the illegal extension; in alternative to refund by the 1st Respondent, the 4th Respondent be held personally liable for the illegal extension, and is surcharged for salaries and allowances earned by the 1st Respondent; costs to the Petitioners; and any other suitable relief. 5.The 1st and 4th Respondent filed a Notice of Preliminary Objection, challenging the jurisdiction of the Court. The objection is based on Article 234 [2] [1] of the Constitution, Section 77 of the County Governments Act, and Section 87[2] of the Public Service Commission Act. These laws require that disputes involving the public service, are primarily heard by the Public Service Commission of Kenya. The Court does not have jurisdiction. 6.The Petitioners acknowledge that the Public Service Commission is the right forum for their dispute, at paragraph 15 of their Petition. They state that they filed the dispute at the Public Service Commission, but that the Public Service Commission had failed to act on their dispute, compelling them to come to Court. 7.Parties agreed that the objection is considered and determined on the strength of their submissions and pleadings. They confirmed filing and exchange of submissions at the last mention, on 24th March 2026. The Court Finds: - 8.The Petitioners are aware that they ought to have filed their dispute at the Public Service Commission, and exhausted that mechanism, in accordance with the County Governments Act and the Public Service Commission Act. These statutes are anchored on Article 234 [2] [i] of the Constitution, which mandates the Public Service Commission to hear and determine appeals in respect of county public service. 9.The Petitioners filed their dispute at the Public Service Commission on 9th December 2025. They approached the Court a month later, on 20th January 2026. Did they exhaust the appellate and review jurisdiction of the Public Service Commission within a month, so as to invoke the jurisdiction of the Court? 10.They seem to have filed the dispute at the Public Service Commission as a formality. It was to them a mere formality, to open the door for them to approach the Court, where they would urge the Court that the Public Service Commission had failed to act on their grievances. 11.There is no provision in the County Governments Act and the Public Service Commission, which requires the Public Service Commission to hear and determined disputes placed before it, in about a month. 12.There is no provision which allows disputants to come to Court if their disputes are not resolved at the Public Service Commission, within a month. 13.A catena of judicial authorities, beginning at the Supreme Court of Kenya, in NGO’s Co-ordination Board v. EG & 4 Others; Katiba Institute [Amicus Curiae] [2023] e-KLR; Court of Appeal in Secretary, Wajir County Public Service Board & Another v. Hulbhai Gedi Abdille [2017]KECA 643 [KLR]; down to the E&LRC in Toroitich v. Kirandich Water Company Limited [2026] KEELRC 259 [KLR], have established that even where Courts have jurisdiction to determine profound questions of law, the first opportunity has to be given to the relevant persons, bodies, tribunals or other quasi-judicial authorities and organs, to deal with the dispute as provided for in the relevant parent statute. The doctrine of exhaustion is central to the supremacy of the Constitution, the rule of law, and integrity of county public service, principles which the Petitioners state, have compelled them to petition the Court. They have not exhausted the mechanisms available under the relevant statutes. 14.Section 77 of the County Governments Act, and Section 85 of the Public Service Commission Act, confer jurisdiction on the Public Service Commission, to hear and determine disputes involving employment in the public service. 15.Section 87[2] of the Public Service Commission Act, 2017 states that, no person shall file any proceedings [including petitions] in any Court, with respect to matters within the jurisdiction of the Public Service Commission, unless the procedure provided under the part, has been exhausted. 16.Section 89 [1] of the Public Service Commission Act provides for enforcement of decisions of the Public Service Commission upon appeal, at the E&LRC. There is no other jurisdiction donated to this Court by the Public Service Commission Act, other than on enforcement of the Commission’s decisions upon appeal. 17.The preliminary objection is merited.It is ordered: -a.The Petition is hereby struck out for want of jurisdiction.b.The Petitioners shall exhaust the process they initiated at the Public Service Commission.c.Cost to the Respondents. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH MAY 2026.JAMES RIKAJUDGE