Onsare v County Government of Nyamira & another (Cause E009 of 2026) [2026] KEELRC 2239 (KLR) (31 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **CAUSE NO. E009 OF 2026** SAUL MOGAKA ONSARE.........................................................**CLAIMANT** **VERSUS** COUNTY GOVERNMENT OF NYAMIRA...................**1ST RESPONDENT** NYAMIRA COUNTY PUBLIC SERVICE BOARD......**2ND RESPONDENT** **RULING** 1. The Preliminary Objection filed by the Respondents on 17th June 2026 contests the jurisdiction of this Court to hear and determine the issues arising from this present suit. The Respondents contend that by bringing the present suit to this Court the Claimant has bypassed the authority of the Public Service Commission conferred by section 77 of the County Governments Act 2012, and sections 85, 86 and 87 of the Public Service Commission Act 2017. In addition, it is asserted that the present suit has not been instituted at the Court of the lowest competent jurisdiction and that this Court lacks territorial jurisdiction to hear and determine the present suit. The Claimant herein opposes the objection and asserts that this Court is properly seized of jurisdiction to hear and determine the present suit. The objection was canvassed through written submissions. Claimant's Submissions 1. The Claimant submits that the Preliminary Objection does not raise pure points of law as contemplated in **Mukisa Biscuit Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] EA 696** and **Oraro *v* Mbaja [2005] 1 KLR 141**. He contends that the issue of whether his lodgement of an appeal before the PSC amounted to invocation of the exhaustion principle under section 77 of the County Government Act is a question that can only be determined upon consideration of evidence. On jurisdiction, the Claimant submits that he complied with the doctrine of exhaustion by filing an appeal before the PSC which was subsequently struck out. He draws attention to the PSC's ruling dated 18th February 2026. The Claimant therefore contends that there was no need for review as alluded to by the Respondent because there was no error on the face of the record or fresh material facts. In support of this position reliance is placed on **Busia County Public Service Board *v* Public Service Commission *&* another [2025] KEELRC 3014 (KLR),** which underscored that not every PSC decision is supposed to be appealed from. In view of the foregoing, he maintains that he exhausted the statutory redress mechanisms as was held in **Evans Ogutu Ouma *v* Migori County Public Service Board *&* another [2026] KEELRC 1100 (KLR)**. Regarding the Respondents' contention that the suit ought to have been filed before the Magistrates' Court, the Claimant submits that his monthly salary was Kshs. 159,630/-, thereby bringing the matter within the jurisdiction of this Court pursuant to **Gazette Notice No. 6024 of 2018**. He further submits that the nearest Employment and Labour Relations Court with jurisdiction over Nyamira County is the Kisii ELRC. He therefore urges the Court to dismiss the Preliminary Objection with costs. Respondents' Submissions 1. The Respondents submit that the claim is inadmissible as the issues raised therein were previously presented before the Public Service Commission (PSC) in **PSC County Appeal No. 143 of 2025 (Saul Mogaka Onsare *v* Nyamira County Public Service Board)**, where the Claimant's grievances were struck out. They contend that the claimant has neither appealed against nor sought review of the PSC's decision, with the result that the decision remains valid, binding and unassailed. They argue that the Claimant cannot disregard the PSC's determination by re-litigating the same grievances before this Court. In support of this position, they rely on **Speaker of the National Assembly *v* Karume (Civil Application No. 92 of 1992) [1992] KECA 42 (KLR)** for the principle that where Parliament has prescribed a dispute resolution procedure, that procedure must be strictly followed. They further rely on **Mbithi *v* Makueni County Public Service Board *&* another [2026] KEELRC 12 (KLR)** to submit that this Court's jurisdiction in relation to decisions of the PSC is exercised through appellate or review proceedings, and on **Mwangi *v* Public Service Commission *&* 2 others [2024] KEELRC 790 (KLR)** for the proposition that a decision of the PSC remains effective and binding until it is set aside. Accordingly, they maintain that the claimant's recourse lay in appellate or review proceedings rather than instituting a fresh claim before this Court. 2. The Respondents further submit that the suit has been filed in the wrong forum. They assert that the claim is an ordinary employment dispute, not a constitutional or human rights petition, and that it falls within the pecuniary jurisdiction of the Magistrates' Court under sections 7 and 9 of the Magistrates' Courts Act. They further submit that, pursuant to Gazette Notice No. 6024 of 22 June 2018, magistrates of the rank of Senior Resident Magistrate and above are empowered to hear employment and labour relations matters. They contend that the Respondents are domiciled in Nyamira County, the cause of action arose within Nyamira County, and there exists a Chief Magistrate's Court with employment and labour jurisdiction under section 29 of the Employment and Labour Relations Court Act. They maintain that the Claimant has not demonstrated any exceptional circumstances warranting the filing of the claim before this Court instead of the court of the lowest competent jurisdiction. Consequently, they submit that the suit contravenes sections 11, 14 and 15 of the Civil Procedure Act, as read together with sections 7 and 9 of the Magistrates' Courts Act, is defective *ab initio*, amounts to an abuse of the court process, and should therefore be struck out with costs. Disposition 1. The Respondent has completely misapprehended the purport of an appeal to the Public Service Commission. The law makes provision under section 77 of the County Government Act for a review process. It is apparent this was done in the **PSC County Appeal No. 143 of 2025 (Saul Mogaka Onsare *v* Nyamira County Public Service Board)**. There is no mandatory appeal process before the PSC. The Claimant had every right to approach this Court as the Court is the one reposed with jurisdiction over the quasi-judicial bodies and tribunals and NOT the Magistrates Courts. As such, regardless of the amount in dispute, where a party wishes to challenge the decision of the Public Service Commission, the Parliamentary Service Commission or County Public Service Board or even the Teachers Service Commission, the proper forum is the Employment and Labour Relations Court and not the Chief Magistrates to whom the power of this Court was donated by Gazette Notice. The preliminary objection is not merited and cannot result in determination of the dispute herein *in limine.* The objection taken is dismissed with costs to the Claimant. Directions will issue upon the delivery of this Ruling as regards the determination of the dispute before me. It is so ordered. **Dated and delivered at Kisumu this 31st day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**