https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2166

Nduta v Ombasa, Acting County Secretary Kisii County Government & 3 others (Cause E024 of 2025) [2026] KEELRC 2166 (KLR) (27 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2166 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisii Cause E024 of 2025 Nzioki wa Makau, J July 27, 2026 Between Gitau Percy Nduta Claimant and Robert M Ombasa, Acting County Secretary Kisii County Government 1st Respondent Kisii County Government 2nd Respondent Kisii County Public Service Board 3rd Respondent Public Service Commission 4th Respondent Ruling 1.Before court are two Preliminary Objections challenging the competency of this suit. The first, dated 4th March 2026, was filed by the 4th Respondent, while the second, dated 23rd March 2026, was filed by the 1st ,2nd and 3rd Respondents. In its objection, the 4th Respondent contends that this court lacks jurisdiction by virtue of sections 87(2) and 88(1) of the Public Service Commission Act and sections 7(1) and 9(1) of the Fair Administrative Action Act. It argues that the Claimant violated the doctrine of exhaustion by failing to seek a review before the Public Service Commission prior to instituting these proceedings. It further contends that the Claimant failed to commence judicial review proceedings as contemplated under sections 7(1) and 9(1) of the Fair Administrative Action Act, thereby rendering the claim incompetent. 2.The 1st, 2nd and 3rd Respondents, on the other hand challenge the competency of the suit on the ground that it is res judicata and therefore an abuse of the court process. They contend that the dispute was conclusively determined by the Public Service Commission in County Appeal No. 066 of 2024 involving the same parties and the same subject matter. According to the 1st, 2nd and 3rd Respondents, that decision remains lawful, valid and binding, having neither been reviewed nor set aside on appeal. The Respondents further argue that entertaining the present suit would result in the court making a parallel determination on issues that have already been conclusively adjudicated, thereby undermining the integrity of the judicial process. They therefore maintain that the suit is barred by section 7 of the Civil Procedure Act and should be struck out with costs. 3.The Preliminary Objections were canvassed by way of written submissions. The 4th Respondent filed submissions in support of its the Preliminary Objection dated 4th March 2026, while the 1st - 3rd Respondents filed submissions in support of both preliminary objections. On the Claimant’s part, submissions in opposition to the Preliminary Objection dated 23rd March 2026 were filed. 4th Respondent’s Submissions 4.The 4th Respondent identifies the sole issue for determination as whether this court has jurisdiction to hear and determine this suit. It submits that this Court lacks jurisdiction to entertain the claim and urges that it be struck out. It argues that jurisdiction is foundational and cites Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), where the Court held that jurisdiction is everything and, without it, a court must down its tools. It also relies on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR for the proposition that a court's jurisdiction flows from the Constitution or legislation. 5.The 4th Respondent further submits that the claim offends the doctrine of exhaustion. It relies on Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR and William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, in which the courts affirmed that where a statutory dispute resolution mechanism exists, it must be exhausted before recourse is made to the courts. The 4th Respondent maintains that the Claimant was supposed to file for review of County Appeal No. 066 of 2024 before filing this suit in court. It asserts that section 88(1) of the Public Service Commission Act provides for review of the Commission's appellate decisions and that no application for review has been lodged in respect of County Appeal No. 066 of 2024. It further avers that section 87(2) of the Act bars a party from instituting court proceedings on matters within the Commission's appellate jurisdiction before exhausting the statutory procedure, which includes the review mechanism under section 88(1). Accordingly, it submits that the Claimant has failed to exhaust the available remedies, thereby depriving this Court of jurisdiction. 6.The 4th Respondent also submits that the claim is contrary to sections 7(1) and 9(1) of the Fair Administrative Action Act, which require a party aggrieved by an administrative decision to exhaust the available internal mechanisms before seeking judicial review before the High Court or a court of equal status. It asserts that instead of pursuing the prescribed judicial review process, the Claimant improperly instituted the present claim to challenge the Commission's decision. Accordingly, it urges the Court to strike out the suit with costs. 1st, 2nd and 3rd Respondents’ Submissions 7.From the outset the 1st, 2nd and 3rd Respondents support the 4th Respondent's Preliminary Objection dated 4th March 2026 and submit that this Court lacks jurisdiction to entertain the claim. They contend that the Claimant appealed her dismissal to the Public Service Commission in County Appeal No. 066 of 2024, which was heard and determined on its merits. They further assert that no application for review has been lodged under section 88(1) of the Public Service Commission Act. Consequently, they maintain that the suit offends section 87(2) of the Act, which bars the institution of court proceedings before the statutory dispute resolution mechanism has been exhausted. 8.On the issue of res judicata, they submit that the present claim arises from the Claimant's dismissal from employment, which was the very issue determined in County Appeal No. 066 of 2024. They rely on section 7 of the Civil Procedure Act, which bars courts from hearing matters that have been directly and substantially determined in a previous suit between the same parties. They further cite Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, where the Supreme Court outlined the essential elements of res judicata, namely that the earlier decision must have been rendered by a court of competent jurisdiction; the issues in both proceedings must be directly and substantially the same; and the parties, or those claiming under them, must be the same and litigating under the same title. They also rely on Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR in support of the same principles. They therefore urge the Court to uphold the Preliminary Objection dated 23rd March 2026 and strike out the suit with costs. Claimant’s Submissions 9.The Claimant submits that the Preliminary Objections do not raise pure points of law and therefore fail to meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Relying on that decision and Quick Enterprises Ltd v Kenya Railways Corporation [1999] eKLR, as approved in Kandara Residence Association & another v Ananas Holdings Ltd & 4 others; Director of Survey & 3 others (Interested Parties) [2020] eKLR, the Claimant argues that a preliminary objection must be capable of disposing of a matter without the court having to ascertain disputed facts or receive evidence. 10.The Claimant acknowledges that jurisdiction is fundamental, citing Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, but submits that this Court is properly seized of the matter pursuant to Articles 162(2)(a) and 165 of the Constitution. The Claimant contends that the objections on jurisdiction and res judicata cannot be determined as pure points of law because they require interrogation of the underlying facts. 11.On the plea of res judicata, the Claimant relies on Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR, as cited in Evans Ogutu Ouma v Migori County Public Service Board & Migori County Assembly [2026] KEELRC 110, and submits that the requisite elements have not been satisfied. It asserts that the parties before the Public Service Commission are not the same as those before this Court, as the 4th Respondent was not a party to the proceedings before the Commission. The Claimant further contends that the decision of the Public Service Commission cannot be regarded as final for purposes of res judicata since it remains amenable to review or challenge. The Claimant further submits that the Respondents have taken inconsistent positions by simultaneously arguing that the matter is res judicata and that the Claimant failed to exhaust the available statutory remedies. It maintains that the doctrine of exhaustion has, in any event, been satisfied because it lodged County Appeal No. 066 of 2024 before the Public Service Commission, which heard and determined the appeal before the present proceedings were instituted. The Claimant maintains that section 88(1) of the Public Service Commission Act does not impose a mandatory requirement to seek review of the Commission's decision before approaching the Court. It submits that the provision employs the word "may", rendering the review mechanism discretionary rather than compulsory. Consequently, failure to seek review does not bar the institution of the present claim. In support of this position, the Claimant relies on Evans Ogutu Ouma v Migori County Public Service Board & Migori County Assembly [2026] KEELRC 110, where the Court held that the doctrine of exhaustion requires parties to follow the prescribed statutory procedure before approaching the Court and dismissed a preliminary objection after finding that the claimant had exhausted the available administrative remedies. The Claimant submits that it similarly exhausted the statutory process before the Public Service Commission and is therefore properly before this Court. 12.Lastly, the Claimant invokes Article 159 of the Constitution and urges the Court to administer substantive justice rather than determine the dispute on procedural technicalities. It contends that upholding the Preliminary Objections would deny it an opportunity to ventilate the merits of its claim against the 1st, 2nd and 3rd Respondents. The Claimant therefore urges the Court to dismiss the Preliminary Objections with costs. Disposition 13.As held in the famed case of the Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd (supra), jurisdiction is everything. Without it, a court of law cannot take one more step. I agree with Nyarangi JA that is the position. The Learned Judge of Appeal articulated the issue well. He stated:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the Statute, Charter or Commission under which the court is constituted and may be extended or limited by like means….Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decisions amount to nothing" 14.The preliminary objection by the 4th Respondent is for dismissal. One of the essential elements of res judicata, namely that the earlier decision must have been rendered by a court of competent jurisdiction, does not apply to the matter before the Court. It is my finding that the doctrine of res judicata does not apply as the matter before the Public Service Commission as was not a suit nor was it before a competent court. It was a reference to an arbitral tribunal or quasi-judicial proceeding which is NOT contemplated as a suit. The decision of the Public Service Commission is amenable to review by this Court at any stage of the proceedings and therefore any determination before the Commission cannot qualify as being sufficient to found a bar under the doctrine of res judicata. The objection by the 4th Respondent is therefore dismissed with costs to the Claimant. 15.As regards the second preliminary objection by the 1st, 2nd and 3rd Respondents, the same is on the premise that section 88(1) of the Public Service Commission Act makes an application for review discretionary rather than mandatory. The said section uses the word "may" which means the review before the Public Service Commission is discretionary. The exhaustion doctrine only applies to statutorily mandated process and does not apply where there is a discretionary remedy that can be pursued as opposed to a suit. The issues in the suit herein are legal in nature and thus ought to be decided by the Courts rather than an administrative body such as the Public Service Commission and the same falls under the exemption paradigm of the doctrine of exhaustion. Similarly, the preliminary objection by the 1st, 2nd and 3rd Respondents is not merited. The same fails and is dismissed with costs to the Claimant. 16.Directions will issue immediately upon the delivery of this Ruling on the disposal of the suit herein.It is so ordered. DATED AND DELIVERED AT KISII THIS 27TH DAY OF JULY 2026NZIOKI WA MAKAU, MCIARB.JUDGE