https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1615

Ngovi & another v Kitui County Assembly Service Board & 2 others (Petition E190 of 2025) [2026] KEELRC 1615 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1615 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E190 of 2025 JK Gakeri, J June 15, 2026 Between Hon Mathew Ngovi 1st Petitioner Hon Hussein Mwandia 2nd Petitioner and Kitui County Assembly Service Board 1st Respondent Clerk, County Assembly Of Kitui 2nd Respondent Speaker, County Assembly Of Kitui 3rd Respondent Ruling 1.The Petitioners commenced this Petition on 24th September 2025 by filing a Petition of even date seeking various declarations and order of certiorari to quash the recruitment exercise undertaken by the Kitui County Assembly Service Board pursuant to an advertisement dated 5th May 2025. A subsequent Notice of Motion dated 24th October 2025 was heard and determined vide ruling dated 16th April, 2026. 2.However, on 27th October 2025, Counsel for the Respondents filed a Notice of Preliminary Objection dated 16th October, 2025 on the premises that:1.The Honourable Court lacked jurisdiction to hear and determine the Petition as the issues in dispute did not fall under any of the categories of disputes under section 12(1) of the Employment Act and the Labour Relations Act.2.Other legal mechanisms for redress of the Petitioners’ claim had not been exhausted in line with section 86 of the Public Service Commission Act and Section 12 and 77 of the County Governments Act.3.Petitioners lacked locus standi to institute and/or sustain the suit having been part of the process.4.Petitioners were conflicted on account of being members of the County Assembly.5.The Petition was founded on illegally obtained confidential internal documents of the County Assembly Service Board.6.The Petition offended the doctrine of separation of powers.7.The Petition was misconceived frivolous and devoid of merit.8.The Petition did not meet the threshold in Anarita Karimi Njeru v Republic (1979) eKLR.9.The Petition offended the rule against sub judice as there is a similar active matter before the court ELRC PET NO. E127 OF 2025. 3.When the matter came up for mention on 29th April, 2026, the court directed parties to file and exchange submissions, 5 days a piece and a ruling was slated for 26th May, 2026. Respondent’s Submissions 4.As to whether the court has jurisdiction to hear and determine the Petition, reliance was placed on the provisions of section 12 (1) of the Employment and Labour Relations Court Act to submit that the Petitioners were neither employees nor prospective employees as they were sitting members of the County Assembly of Kitui and the court had no jurisdiction to proceed a sheld in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR. 5.Reliance was further placed on Bosire v Telkom Kenya Ltd & another (2023) KEELRC 2993 (KLR), Ibwaga & 84 others vs Attorney General (2023) KEELRC 2802 (KLR), Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees and 13 others (2024) KESC (3) (KLR) and Macharia & another v Kenya Commercial Bank Ltd & 2 others (2012) eKLR to urge that the court had no jurisdiction to hear and determine the petition. 6On the doctrine of exhaustion, reliance was placed on the sentiments of the court in Speaker of the National Assembly v Karume (1992) KLR 21, provisions of section 77 of the County Governments Act, Section 86 of the Public Service Commission Act and the High Court decision on KKB v SCM (2022) KEHC 289 (KLR) to submit that the Petitioners had not shown that they had invoked any internal mechanisms within the County Assembly Service Board or the Public Service Commission and no exceptional circumstances had been pleaded. 7.As to whether the Petition is an abuse of court process, counsel submitted it was as the petitioners had no locus standi as they did not fall within the category envisioned by Article 22 of the Constitution of Kenya, where bound by the principle of corrective responsibility, obtained documents illegally and they were in breach of their oath of office. 8.Reliance was further placed on the decision in Muchanga Investments Ltd v Safaris Un limited (Africa) Ltd & 2 others (2009) eKLR on the concept of abuse of process to urge that the Petitioners were litigating an internal disagreement and had circumvented established dispute resolution mechanisms. Counsel invited the court to uphold the Preliminary Objection and strike out the Petition with costs. 9.As to what Constitutes a Preliminary Objection, the sentiments of the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 remain the most commonly cited and authoritative where Law J A stated:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleading, and which if argued as a preliminary point my dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 10.Sir Charles Newbold P. stated:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…”See also Attorney General & another v Githinji & another (2016) KECA 817 (KLR). 11.Granted that the Respondents are challenging the Court’s jurisdiction to hear and determine the Petition on various grounds including the doctrine of exhaustion, the court is satisfied that the Notice of Preliminary Objection dated 16th October, 2026 meets the threshold in Mukisa Biscuit Manufacturing Co. v West End Distributors Ltd (Supra).See also Hassan Nyanje Charo v Khatib Mwashetani & 30 others (2014) eKLR and Nitin Properties Ltd v Singh Kalsi Shabal and another (1995) eKLR. 12.On jurisdiction of the Employment and Labour Relations Court (herein after ELRC), it is trite law that jurisdiction is everything as held in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Supra)See also Samuel Kamau Macharia & another v Kenya Commercial Banks & others (2012) eKLR on sources of a court’s jurisdiction. 13.Needless to belabour, the ELRC devives its jurisdiction from the provisions of the Article 162 (2) (a) of the Constitution of Kenya and section 12 (1) of the Employment and Labour Relations Court Act and this issue has been addressed in countless decisions. 14.In Stanley Mungai Muchai v National Oil Corporation (2012) eKLR the Court of Appeal stated:“The jurisdiction of the Employment and Labour Relations Court extends to all disputes relating to employment and Labour relations. Personal jurisdiction is no longer confined to employers and employees but to all person implicated in an employment and Labour relations dispute.” 15.It requires no emphasis that the ELRC has jurisdiction to enforce rights and fundamental freedoms in employment disputes, including jurisdiction to determine the constitutional validity of a statute in matters employment and Labour. 16.See Public Service Commission & 4 others v Cheruiyot & 20 others (2022) KECA 15 (KLR), Prof. Daniel N. Mugendi & another v Kenyatta University & others (2013) eKLR and Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others (2024) KESC 3 eKLR. 17.Although it is correct to state that the matters in dispute herein do not fall within the categories of disputes listed under section 12(1) of the Employment and Labour Relations Court Act, the list is inexhaustive exhaustive. 18.Relatedly, the courts jurisdiction extends to all employment and Labour relations disputes and “for connected purposes” as the Preamble to the Act states. 19.It is trite that there cannot be an employer/employee relationship without the processes that culminate in the engagement of a person as an employee of the other and the legislature could not have intended to confer the jurisdiction to hear and determine disputes relating to processes such as declaration of vacancy, applications, short -listing interview process and offers on one court and subsequent disputes on another court. 20.This is discernible from the provisions of section 5 of the Employment Act which provides:1.…2.…3.No employer shall discriminate directly or indirectly against an employee or prospective employee or harass and employee or prospective employee.a.On the ground of race, colour, sex, language, religion, political or other opinion, nationality ethnicity or social origin disability pregnancy, mental status or HIV status;b.In respect of recruitment training promotion, terms and conditions of service of employment, termination of employment or other matters arising out of the employment. 21.The foregoing provisions leave no doubt that activities preceding the engagement of a person as an employee of another are capable of being remedied as employment disputes. 22.Concerning exhaustion of internal dispute resolution mechanisms, it is clear that law provides another mechanism for the resolution of disputes relating to the county public service. 23.Article 234 of the Constitution of Kenya provides that:1.The functions and powers of the Commission are as set out in this Article.2.The Commission shall –a.…b.…c.…d.…e.…f.…g.…h.…i.hear and determine appeals in respect of County Governments Public Service. 24.Similarly, section 87 of the Public Service Commission Act provides:a.…b.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 county government public service unless the procedure provided for under this part has been exhausted. 25.The part referred to is Part XV of the Act, under the heading “Hearing and Determination of Appeals in respect of County Government Public Service.” 26.Under section 86(1) of the Public Service Commission Act;Any person who is dissatisfied or affected by a decision made by any authority or person in respect of a County Government Public Service may appeal to the Commission against the decision. 27.Similarly, under section 85 of the Act, the Commission has jurisdiction to hear and determine appeals in respect of and relating to the engagement of any person in a County Government including a decision in respect of recruitment, selection, appointment and qualifications attached to the office among others. 28.Finally, section 77 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”) 29.The foregoing provisions of the Constitution of Kenya, Public Service Commission Act and the County Governments Act lay it bare that there is another legally prescribed mechanism for the resolution of disputes relating to matters germane to employment by County Governments. 30.By dint of being the latest statute, the provisions of the Public Service Commission Act, effective 26th April 2017, are the most authoritative on the matter of appeals and expressly prohibit persons from filing court actions before the appellate procedure is exhausted. 31.Courts have been steadfast in the enforcement of the doctrine of exhaustion as it is a constitutional imperative. 32.In NGO’s Co-ordination Board v E G & 4 others: Katiba Institute (Amicos Curie), the Supreme Court of Kenya held:…Even where superior courts had 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. It is now firmly established that in cases where there is an alternative dispute resolution mechanism established by legislation, the courts must exercise restraint in exercising their jurisdiction and accord deference to such dispute resolution bodies under the doctrine of exhaustion. This court in its previous decisions has settled the jurisprudence regarding the doctrine of exhaustion of administrative remedies.” 33.The Court of Appeal expressed similar sentiments in Speaker of the National Assembly v Njenga Karume (Supra) Secretary County Public Service Board & another v Hulbhai Gedi Abdille (2017) eKLR and Geoffred Muthinja Kabiru and 2 others v Samuel Muguna Henry & 1756 others (2015) eKLR. 34.See also Republic v Commissioner General Kenya Revenue Authority Ex parte Sanofi Aventis Ltd (2019) eKLR and William Odhiambo Ramogi & 3 others v Attorney General & 4 others Muslim for Human Rights & 2 others (Interested Parties) (2020) eKLR among others. 35.The foregoing decisions establish beyond peradventure that the doctrine of exhaustion is now part of the judicial lineage in Kenya. 36.Finally, although the provisions of section 86 of the Public Service Commission Act and section 77 of the County Governments Act use the term “may” which implies that the dissatisfied or affected person has the option, that is not the case. This is because a wholistic reading of the foregoing provisions together with Article 234 (2) (i) of the Constitution of Kenya is sufficient testament that both the people of Kenya and the Legislature intended to establish a compulsory internal dispute resolution mechanism for all disputes relating to the employment of county public officers. 37.The foregoing is fortified by the decision in James Tinai Murete & others v County Government of Kajiado and another; Nailntei Supeyo & 19 others; Interested Parties (2015) EKLR, where Mumbi Ngugi J (as she then was) stated:…The Petitioners were dissatisfied with the decision of the Respondents with regard to recruitment to various positions within the County and they cannot argue in the face of clear provisions of section 77 of the County Governments Act, that they can bypass legislation and come to this court by way of a Constitutional provision… 38.First, it is my view that the legislature could not intend to establish a dispute resolution mechanism and then render it redundant by giving parties the option to choose whether to follow it or not. 39.Read as a whole, section 77 of the County Governments Act evinces an intention to have all disputes arising out of appointments by the County Public Service Boards dealt with by the Public Service Commission hence its grant to the Commission mandate in mandatory terms that the commission … shall entertain appeals in respect of recruitment selection or appointment and qualification attached to any office. There is no option given to a party to choose whether or not to file grievances with the Commission. 40.In the circumstances, I find that the issues raised in the present petition should have been raised before the Public Service Commission which has the statutory mandate under section 77 of the County Governments Act to deal with such disputes.” 41.These sentiments apply with equal force to the circumstances of this case on account that the grievance of the Petitioners relates to recruitment, selection and appointment of persons by the KITUI County Assembly Service Board.The upshot of the foregoing is that the instant petition was filed prematurely and it is accordingly struck out with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15th JUNE, 2026.DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.