1. On 3 May 2024, the Governor, County Government of Nyamira announced that an audit had revealed that some 79 employees had secured employment using forged academic or professional certificates. The Governor also announced the immediate stoppage of salaries to the affected employees, and contemplated disciplinary action.
2. Consequently, the Respondents issued show-cause notices to the affected employees. The notices instructed the employees to respond within 14 days.
3. The Petitioners were aggrieved and on 31 May 2024, they filed a Petition alleging that the decision of the Governor was unlawful because he had apparently usurped the mandate of the Public Service Commission as given by Articles 232 and 234 of the Constitution.
4. The Petitioners further asserted that the Respondents had violated their rights to privacy, fair administrative action and fair hearing as contemplated by Articles 31, 47 and 50(1) and (2) of the Constitution because they had not been heard before the stoppage of the salaries.
5. Upon service, the Respondents filed a replying affidavit sworn by the County Secretary as well as a Notice of Preliminary Objection on 9 June 2024, contending:
1. This Honourable Court lacks jurisdiction ab initio to in the first instance adjudicate the instant claim as;
1.1. The filing and institution of the instant proceedings is contrary to the express and mandatory provisions of section 87(2) of the Public Service Commission Act (Cap. 185 - Laws of Kenya); since
1.2. The mandatory initial and first appellate legal procedure for adjudicating grievances and claims arising out of any decision relating to employment of a person in a county government including a decision in respect of recruitment, selection, appointment, remuneration and disciplinary control is as set under the provisions of section 77 of the County Governments Act (Cap. 265 - Laws of Kenya) read in conjunction with the provisions of sections 85, 86 and 87(2) of the Public Service Commission Act [Cap. 185 - Laws of Kenya]; and Article 234(2)(i) of the Constitution of Kenya, 2010;
1.3. The Petitioners have not in the entirety of their pleadings pleaded exhaustion of the mandatory legal procedures spelt in the aforesaid legal provisions;
1.4. The instant proceedings as instituted herein therefore also offend the elemental legal doctrine of exhaustion;
2. Whereas it is elemental law that there be reasonable precision in pleading and framing issues in constitutional petitions;
2.1. The instant petition, besides listing Articles of the Constitution, does not at any point plead any PARTICULARS of violation of any single constitutional provision:
2.2. The instant Petition has not at any point pleaded the manner in which and HOW any particular constitutional provision has been violated by any of the Respondents;
2.3. The instant Petition while making sweeping allegations of irregularities and illegalities does not at any point plead any PARTICULARS of illegalities and HOW exactly the same constitute constitutional violations;
3. The instant Petition is poorly pleaded, ambiguous, unclear and discloses no intelligible constitutional violation warranting adjudication – the petition is defective ab initio and merits dismissal ex debito justitiae
6. The Court gave directions on the Notice of Preliminary Objection on 10 June 2024 and 25 June 2024.
7. Consequently, the Respondents filed their submissions on 12 June 2024 and the Petitioners on 21 June 2024.
8. In support of the Objection, the Respondents urged that because the cause of action related to a purported exercise of disciplinary powers bestowed on them by section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act, the Petitioners ought to have exhausted the appellate procedures outlined in law before invoking the jurisdiction of the Court.
9. The Respondents drew the attention of the Court to the decision of the Supreme Court in NGOs Co-ordination Board v EG & 4 Ors; Katiba Institute (Amicus Curiae) (2023) KESC 17 (KLR) on exhaustion of alternative dispute resolution avenues.
10. The Respondents also cited other authorities including Secretary, County Public Service Board & Ar v Hulbhai Gedi Abdille (2017) eKLR and Evans Shipala Mulunji (Suing as an Administrator of the Estate of Evelyne Khabukwi Mulunji) v County Government of Kakamega (2022) eKLR.
11. In their submissions, the Petitioners contended that since they had approached the Court under Article 23 of the Constitution alleging violation of their Constitutional rights, then the question of the Court’s jurisdiction did not arise. Solace was found in Geoffrey Mworia v Water Resources Management Authority & 2 Ors (2015) eKLR and Prof Kiama Wangai v Egerton University (2016) eKLR.
12. The question of the Court’s jurisdiction where a statute has provided alternative dispute resolution has now taken a well-trodden path and more so where section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act are concerned.
13. The Court of Appeal held in Speaker of the National Assembly v Karume (1992) eKLR:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by law must be strictly adhered to since there are good reasons for such special procedures.
14. Very recently, the Court of Appeal held in Civil Appeal No. E034 of 2023, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors:
The question we are now called upon to determine is whether or not the appellant was exempt from the doctrine of exhaustion so as to have invoked the jurisdiction of the trial court directly. At the risk of sounding repetitive, we once again state that the doctrine of exhaustion prevents a litigant from seeking a remedy in court until all remedies provided have been exhausted and/or pursued as fully as possible. The Appellant argues that the Kisii County Assembly Human Resource Manual is not couched in mandatory terms and as such the appellant could seek redress from the Employment and Labour Court considering the magnitude of the redress and reliefs sought. The redress in question here, is the manner in which the respondents attempted to discipline the appellant.
… we take note that a similar document referred to by the appellant as the Human Resource Manual 2016 (revised 2021) provides for appeals under D37 – the wording is similar to the extent that the difference is the same. It is important that we deliberately set out in detail. The elaborate removal procedure, as well as the appeals process, so as to understand the context and content of the Human Resource Manual. It is clear to us that Clause D.35 and D37 of the Kisii Human Resource Manual clothed the PSC with the power to determine appeals from the decision of the Board in exercise of its disciplinary control.
Our reading of Article 253 (1)(c) of the Constitution alongside section 77 of the County Governments Act, confirms to us that the Constitution bestows the responsibility of exercise of disciplinary control over and removing persons holding or acting in offices established in the County Government on the County Government. We concur with the respondents’ submissions that the Kisii County Human Resource Manual has the backing and force of law, contrary to what the appellant would have this court believe.
In addition, the appellant has also not led any evidence to show the existence of exceptional circumstances to warrant the direct invocation of court’s jurisdiction without exhausting all remedies available first. We hold the view that the appellant ought to convince this Court that the internal remedy would be ineffective, unavailable, and inadequate.
15. This binding authority from the Court of Appeal reiterated the legal position on exhaustion of alternative dispute resolution avenues in relation to disputes arising out of the exercise or purported exercise of powers by County Public Service Boards and applies to the instant case.
16. The Court finds that the Petitioners invoked its jurisdiction prematurely.
17. Before concluding, the Court notes that the delivery of this Ruling has been brought forward with notice to the parties.
Conclusion and Orders
18. The Court has reached a conclusion that its jurisdiction was invoked prematurely. It is, therefore, not necessary to address the other questions raised in the Objection and submissions, some which require an interrogation of facts.
19. In light of the above, the Court downs its pen and strikes out the Petition with costs to the Respondents.
2. Consequently, the Respondents issued show-cause notices to the affected employees. The notices instructed the employees to respond within 14 days.
3. The Petitioners were aggrieved and on 31 May 2024, they filed a Petition alleging that the decision of the Governor was unlawful because he had apparently usurped the mandate of the Public Service Commission as given by Articles 232 and 234 of the Constitution.
4. The Petitioners further asserted that the Respondents had violated their rights to privacy, fair administrative action and fair hearing as contemplated by Articles 31, 47 and 50(1) and (2) of the Constitution because they had not been heard before the stoppage of the salaries.
5. Upon service, the Respondents filed a replying affidavit sworn by the County Secretary as well as a Notice of Preliminary Objection on 9 June 2024, contending:
1. This Honourable Court lacks jurisdiction ab initio to in the first instance adjudicate the instant claim as;
1.1. The filing and institution of the instant proceedings is contrary to the express and mandatory provisions of section 87(2) of the Public Service Commission Act (Cap. 185 - Laws of Kenya); since
1.2. The mandatory initial and first appellate legal procedure for adjudicating grievances and claims arising out of any decision relating to employment of a person in a county government including a decision in respect of recruitment, selection, appointment, remuneration and disciplinary control is as set under the provisions of section 77 of the County Governments Act (Cap. 265 - Laws of Kenya) read in conjunction with the provisions of sections 85, 86 and 87(2) of the Public Service Commission Act [Cap. 185 - Laws of Kenya]; and Article 234(2)(i) of the Constitution of Kenya, 2010;
1.3. The Petitioners have not in the entirety of their pleadings pleaded exhaustion of the mandatory legal procedures spelt in the aforesaid legal provisions;
1.4. The instant proceedings as instituted herein therefore also offend the elemental legal doctrine of exhaustion;
2. Whereas it is elemental law that there be reasonable precision in pleading and framing issues in constitutional petitions;
2.1. The instant petition, besides listing Articles of the Constitution, does not at any point plead any PARTICULARS of violation of any single constitutional provision:
2.2. The instant Petition has not at any point pleaded the manner in which and HOW any particular constitutional provision has been violated by any of the Respondents;
2.3. The instant Petition while making sweeping allegations of irregularities and illegalities does not at any point plead any PARTICULARS of illegalities and HOW exactly the same constitute constitutional violations;
3. The instant Petition is poorly pleaded, ambiguous, unclear and discloses no intelligible constitutional violation warranting adjudication – the petition is defective ab initio and merits dismissal ex debito justitiae
6. The Court gave directions on the Notice of Preliminary Objection on 10 June 2024 and 25 June 2024.
7. Consequently, the Respondents filed their submissions on 12 June 2024 and the Petitioners on 21 June 2024.
8. In support of the Objection, the Respondents urged that because the cause of action related to a purported exercise of disciplinary powers bestowed on them by section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act, the Petitioners ought to have exhausted the appellate procedures outlined in law before invoking the jurisdiction of the Court.
9. The Respondents drew the attention of the Court to the decision of the Supreme Court in NGOs Co-ordination Board v EG & 4 Ors; Katiba Institute (Amicus Curiae) (2023) KESC 17 (KLR) on exhaustion of alternative dispute resolution avenues.
10. The Respondents also cited other authorities including Secretary, County Public Service Board & Ar v Hulbhai Gedi Abdille (2017) eKLR and Evans Shipala Mulunji (Suing as an Administrator of the Estate of Evelyne Khabukwi Mulunji) v County Government of Kakamega (2022) eKLR.
11. In their submissions, the Petitioners contended that since they had approached the Court under Article 23 of the Constitution alleging violation of their Constitutional rights, then the question of the Court’s jurisdiction did not arise. Solace was found in Geoffrey Mworia v Water Resources Management Authority & 2 Ors (2015) eKLR and Prof Kiama Wangai v Egerton University (2016) eKLR.
12. The question of the Court’s jurisdiction where a statute has provided alternative dispute resolution has now taken a well-trodden path and more so where section 77 of the County Governments Act and section 87(2) of the Public Service Commission Act are concerned.
13. The Court of Appeal held in Speaker of the National Assembly v Karume (1992) eKLR:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by law must be strictly adhered to since there are good reasons for such special procedures.
14. Very recently, the Court of Appeal held in Civil Appeal No. E034 of 2023, James Omariba Nyaoga v Chairman, Kisii County Assembly Service Board & Ors:
The question we are now called upon to determine is whether or not the appellant was exempt from the doctrine of exhaustion so as to have invoked the jurisdiction of the trial court directly. At the risk of sounding repetitive, we once again state that the doctrine of exhaustion prevents a litigant from seeking a remedy in court until all remedies provided have been exhausted and/or pursued as fully as possible. The Appellant argues that the Kisii County Assembly Human Resource Manual is not couched in mandatory terms and as such the appellant could seek redress from the Employment and Labour Court considering the magnitude of the redress and reliefs sought. The redress in question here, is the manner in which the respondents attempted to discipline the appellant.
… we take note that a similar document referred to by the appellant as the Human Resource Manual 2016 (revised 2021) provides for appeals under D37 – the wording is similar to the extent that the difference is the same. It is important that we deliberately set out in detail. The elaborate removal procedure, as well as the appeals process, so as to understand the context and content of the Human Resource Manual. It is clear to us that Clause D.35 and D37 of the Kisii Human Resource Manual clothed the PSC with the power to determine appeals from the decision of the Board in exercise of its disciplinary control.
Our reading of Article 253 (1)(c) of the Constitution alongside section 77 of the County Governments Act, confirms to us that the Constitution bestows the responsibility of exercise of disciplinary control over and removing persons holding or acting in offices established in the County Government on the County Government. We concur with the respondents’ submissions that the Kisii County Human Resource Manual has the backing and force of law, contrary to what the appellant would have this court believe.
In addition, the appellant has also not led any evidence to show the existence of exceptional circumstances to warrant the direct invocation of court’s jurisdiction without exhausting all remedies available first. We hold the view that the appellant ought to convince this Court that the internal remedy would be ineffective, unavailable, and inadequate.
15. This binding authority from the Court of Appeal reiterated the legal position on exhaustion of alternative dispute resolution avenues in relation to disputes arising out of the exercise or purported exercise of powers by County Public Service Boards and applies to the instant case.
16. The Court finds that the Petitioners invoked its jurisdiction prematurely.
17. Before concluding, the Court notes that the delivery of this Ruling has been brought forward with notice to the parties.
Conclusion and Orders
18. The Court has reached a conclusion that its jurisdiction was invoked prematurely. It is, therefore, not necessary to address the other questions raised in the Objection and submissions, some which require an interrogation of facts.
19. In light of the above, the Court downs its pen and strikes out the Petition with costs to the Respondents.