https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2146

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E024 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) JAMES WAIREGI WAMBUGU ……………….….. …..CLAIMANT VERSUS COUNTY GOVERNMENT OF NYADARUA……………………………..…...…...ST RESPONDENT COUNTY PUBLIC SERVICE BOARD COUNTY GOVERNMENT OF NYANDARUA………………………………2ND RESPONDENT COUNTY SECRETARY COUNTY GOVERNMENT OF NYANDARUA…………………………………. 3RD RESPONDENT RULING Introduction 1. The Respondents filed a Notice of Preliminary dated 19th June 2026 on the following grounds that: 1.This Honourable court lacks jurisdiction to entertain the Claimant’s suit in its present form by virtue of the doctrine of exhaustion of statutory remedies. ELRC CAUSE NO. E024 OF 2025 RULING PAGE 1 OF 16 2.The dispute herein arises from the exercise of disciplinary control and removal from dispute resolution and appellate mechanism under: a.Article 234(2)(i) of the Constitution of Kenya, 2010; b.Article 235(1) of the Constitution of Kenya, 2010; c. Section 77 of the County Governments Act, No. 17 of 2012; and d.Section 74, 75, and 87 of the Public Service Commission Act, 2017. 3.The Claimant’s grievance concerns his disciplinary proceedings and dismissal from County Public Service and is therefore a matter falling within the appellate jurisdiction of the Public Service Commission before invocation of this court’s jurisdiction. 4.The Claimant has admitted in his pleadings that he invoked the statutory appeal process and that the said process had not been concluded at the time of filing the substantive suit. 5.The Claimant instituted these proceedings before fully exhausting the dispute resolution mechanism established by the Constitution and statute. 6.No exceptional circumstances have been pleaded or demonstrated to warrant exemption from the doctrine of exhaustion. ELRC CAUSE NO. E024 OF 2025 RULING PAGE 2 OF 16 7.Consequently, the suit is premature, incompetent and an abuse of the court process. 2. The Respondents prays that: a. The Claimant’s Amended Memorandum of Claim be struck out and/or stayed pending exhaustion and determination of the statutory appellate process before the Public Service Commission; b. Costs of the Preliminary Objection and the suit be awarded to the Respondents; and c. Such further orders be made as the court may deem fit. Claimant’s grounds of opposition 3. The Claimant opposed the notice of preliminary objection dated 23rd June 2026 coming up with 15 grounds where the court will summarize as follows: 4. The Claimant argues that the notice of preliminary objection is baseless, incompetent, and an abuse of process. He contends that he duly filed an appeal before the County Public Service Board in October 2024, which remains undetermined despite statutory timelines requiring resolution within six months. He cites subsisting conservatory orders restraining adverse action against him, which the Respondents have disregarded, thereby frustrating the appellate ELRC CAUSE NO. E024 OF 2025 RULING PAGE 3 OF 16 process. The Claimant maintains that the doctrine of exhaustion is not absolute under section 9 of the Fair Administrative Action Act, especially where remedies are ineffective, delayed, or unavailable. He asserts that the prolonged delay constitutes exceptional circumstances, making exhaustion inapplicable. He further argues that the objection raises factual disputes unsuitable for determination as a preliminary objection, and that the court has jurisdiction under the Constitution and the Employment and Labour Relations Court Act. Striking out the claim, he submits, would deny him access to justice and cause grave prejudice. He therefore urges dismissal of the objection with costs. 5. Parties canvassed the notice of preliminary objection by way of written submissions. Respondents’ submissions 6. The Respondents emphasize that their Preliminary Objection raises a pure point of law as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, since the facts of dismissal, appeal, and subsequent applications are uncontested. The Respondents rely on the reasoning in Mubea Group Limited v Kenya Revenue Authority [2025] KEHC 12003 (KLR), ELRC CAUSE NO. E024 OF 2025 RULING PAGE 4 OF 16 where Hon. Lady Justice Aburili held that an objection pointing to a statutory ouster of jurisdiction or an unexhausted dispute resolution mechanism constitutes a pure question of law capable of summarily terminating proceedings when foundational dates are evident from the record. In that case, the High Court declined jurisdiction and struck out the judicial review application, enforcing the doctrine of exhaustion under section 52(1) of the Tax Procedures Act and section 9(2) of the Fair Administrative Action Act, reaffirming that specialized tribunals such as the Tax Appeals Tribunal must be utilized before approaching the High Court. The applicant’s failure to demonstrate exceptional circumstances led to dismissal, with each party bearing its own costs. The Respondents thus argue that the same principle applies here, as the Claimant bypassed the mandatory appellate process, rendering the suit premature and incompetent. 7. The Respondents contend that the dispute arises from the exercise of disciplinary control over a county public officer, a matter governed by a clear statutory framework. The Respondents argued that under section 77 of the County Governments Act, 2012 and sections 74, 75, and 87 of the Public ELRC CAUSE NO. E024 OF 2025 RULING PAGE 5 OF 16 Service Commission Act, 2017, appeals against decisions of a County Public Service Board must first be lodged with the Public Service Commission (PSC) rather than ELRC. The Respondents relied on the Court of Appeal’s decision in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), the Respondents emphasize that where the Constitution or statute prescribes a specific procedure for redress, that procedure must be strictly followed. The Respondents further relied on the Supreme Court’s pronouncement in Albert Chaurembo Mumba & 7 Others v County Government of Mombasa & 3 Others [2021] eKLR, which affirmed that the doctrine of exhaustion must be applied rigorously whenever a specialized statutory process exists. Accordingly, the Respondents submitted that the Claimant cannot bypass the PSC appellate process, and the ELRC should decline jurisdiction as a forum of first instance. 8. The Respondents argued that the Claimant’s reliance on section 9 of the Fair Administrative Action Act, 2015 to claim “exceptional circumstances” arising from a six-month delay under the Public Service Commission Disciplinary ELRC CAUSE NO. E024 OF 2025 RULING PAGE 6 OF 16 Manual (Revised Edition 2022) is misplaced and amounts to an abuse of process. The Respondents assert that the delay was not caused by the Respondents but by the Claimant’s own multiple and parallel applications including an internal appeal filed on 14th October 2024, an application for conservatory orders in Nyeri, and contempt proceedings in Nakuru which effectively paralyzed the County Public Service Board’s ability to process his appeal. Invoking the equitable Doctrine of Approbation and Reprobation, the Respondents submitted that a litigant cannot claim a process is active to secure conservatory orders and simultaneously allege that the same process is broken to justify a fresh suit. The Respondents relied on the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] KEHC 9501 (KLR), where the High Court held that parties cannot bypass established administrative dispute resolution mechanisms and must exhaust internal statutory procedures before seeking judicial intervention. 9. The Respondents urged the court to allow the notice of preliminary objection and struck out the ELRC CAUSE NO. E024 OF 2025 RULING PAGE 7 OF 16 Claimant’s Amended memorandum of claim with costs. Claimant’s submissions 10. The Claimant submitted that application is incompetent and fails to meet the threshold of a valid preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (Supra). He maintains that the objection is founded on contested facts particularly whether he exhausted the statutory appeal process and whether the Respondents’ prolonged inaction rendered that process ineffective. The Claimant emphasizes that he lodged an appeal on 15th October 2024, but it remains undetermined for over twenty-one months, contrary to Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, 2015, which require expeditious administrative action. The Claimant relied on the cases of Oraro v Mbaja [2005] KEHC 3182 (KLR), which cautions that preliminary objections must not be based on disputed facts, and Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), underscoring the careful approach required in jurisdictional matters. Further, he relies on Muthinja & another v Henry & 1756 ELRC CAUSE NO. E024 OF 2025 RULING PAGE 8 OF 16 others [2015] KECA 304 (KLR) and Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others(Supra) to argue that the doctrine of exhaustion is not absolute and does not apply where statutory remedies are ineffective, delayed, or inadequate. The Claimant submitted that the Respondents cannot benefit from their own failure to act and that the dispute raises constitutional and jurisdictional questions beyond the competence of an internal appeal. 11. Accordingly, the Claimant urges the court to dismiss the Preliminary Objection with costs and allow the matter to proceed to full hearing on its merits. Analysis and determination 12. The court has considered the notice of preliminary objection and the rival submissions by the counsel; The court is to consider whether this claim should be struck out for failure to exhaust the alternative dispute mechanism before he Public Service Commission. 13.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd(supra), the court stated as follows: ELRC CAUSE NO. E024 OF 2025 RULING PAGE 9 OF 16 “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 pleadings, and which if argued as a preliminary point may 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 or to refer the dispute to litigation.” 14.In the Supreme Court case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), the court held as follows: “A true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially, and on the merits.” ELRC CAUSE NO. E024 OF 2025 RULING PAGE 10 OF 16 15. In Loyatum & 5 Others v West Pokot County Government & 2 Others [2023] KEELRC 1831 (KLR) the court cited the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry &1756[2015] eKLR and held that; “It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of this Court is invoked. Courts ought to be of last resort and not the first point of call the moment a storm brews. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interests within the mechanisms in place for resolution outside court. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 16.In this instant case, the Respondent argued that the Claimant’s suit is barred by the doctrine of exhaustion, since disciplinary disputes and dismissal from the County Public Service fall under the appellate jurisdiction of the Public Service Commission as PAGE 11 OF 16 ELRC CAUSE NO. E024 OF 2025 RULING provided by the Constitution and statute. The Claimant, however, contends that the preliminary objection is baseless, noting he filed an appeal before the County Public Service Board on 1st October 2024 which remains unresolved beyond statutory timelines, and that subsisting conservatory orders have been disregarded, frustrating the appellate process. He maintains that under section 9 of the Fair Administrative Action Act, exhaustion is not absolute, and prolonged delay constitutes exceptional circumstances. He further submits that the objection raises factual issues unsuitable for determination as a preliminary objection, and that striking out the claim would unjustly deny him access to justice. Accordingly, he urges dismissal of the objection with costs. 17.A critical analysis of the Preliminary objection points to a case where the issue raised is not a pure point of law. The parties have had to aggressively submit as to whether the Claimant needed to exhaust the internal alternative dispute resolution mechanism. The Claimant’s submission is that he made an appeal to the County Public Service Commission on 1st October 2024. He says the Commission have not dealt with his appeal to date. ELRC CAUSE NO. E024 OF 2025 RULING PAGE 12 OF 16 18. He then filed an application for interim orders and he was granted the same by this court. The Claimant was dismissed on 4th October 2024 and obtained conservatory orders on 24th October 2024. He says he in the meantime lodged an internal mechanism through the County Service Board on 15th October 2024 and he avers he followed the board diligently for resolution but todate, the matter has never been heard or determined. He says he then had to approach the court to safeguard his interests. 19. He says that the Respondent should determine his appeal lodged in 2024 instead of raising this Preliminary objection. 20. The court has found there has been several applications and indeed the Claimant was granted Orders dated 24th October 2024 and the same were to bar the Respondent from taking adverse action against the Claimant and especially not to stop his salary or benefits and not to terminate his employment. The Claimant submits these orders, have not been obeyed by the Respondent. There is even separate ELRC CAUSE NO. E024 OF 2025 RULING PAGE 13 OF 16 contempt proceedings application due to failure to comply with those orders. 21. The parties have been litigating this case for about two years in this case and is clear the Respondent has not complied with court orders. 22. The court finds this now is not a case which deals with a pure point of law as there has been a lot going on from both sides. The Claimant as well did appeal to the Public Service Board and that appeal is still pending. 23. In the case of Secretary of Public Service Board & Another -VS- Hulbhai Gedi Abdille (2017) eKLR the Court of Appeal held that disputes concerning County Public Service Employment should ordinarily be taken through the statutory appeal mechanism before the Public Service Commission under Section 77 of the County Government Act. However, where statutory mechanism is unavailable or ineffective or has not been acted upon within a reasonable time the court may intervene. 24. Having considered the history of this case and the pending matters which the Respondent must first comply with, the court would hesitate to strike out ELRC CAUSE NO. E024 OF 2025 RULING PAGE 14 OF 16 the Claimant’s Memorandum of claim dated 16th April 2025. The court holds the Preliminary objection does not satisfy the provisions of a Preliminary objection and so dismisses the same with costs in the cause. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 24th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In 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 ELRC CAUSE NO. E024 OF 2025 RULING PAGE 15 OF 16 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. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC CAUSE NO. E024 OF 2025 RULING PAGE 16 OF 16