REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
JUDICIAL REVIEW NO. E023 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
KENYA MEDICAL PRACTIONERS, PHARMACISTS AND DENSTIST UNION…………………………………….APPLICANT
VERSUS
COUNTY GOVERNMENT OF HOMA BAY…..1ST RESPONDENT
COUNTY ATTORNEY, COUNTY GOVERNMENT OF HOMABAY………………………………………2ND RESPONDENT
RULING
The applicant filed the instant application dated 25th November 2025 on 27th November 2025 seeking Orders that:
1. The court be pleased to issue an Order of Certiorari to bring before this court the 1st respondent’s letters dated 27th October 2025 and 29th October 2025 and any purported proceedings leading to the said decision for purposes of having them quashed and annulled together with all consequential Orders, if any.
2. The court be pleased to issue an Order of mandamus compelling the respondents to reinstate the Ex Parte Applicants members to their respective substantive positions and work stations held prior to the impugned decision.
3. The court be pleased to issue an Order of prohibition restraining the respondents, their agents or servants from implementing, enforcing or in any way acting upon the said redeployment and/or demotion letters dated 22nd and 29th October 2025.
When the matter came up before the Deputy Registrar on 1st December 2025, none of the parties was present and directions were issued that the matter be mentioned before the Judge on 20th January 2026 when only counsel for the respondent was present and who informed the court that he had filed and served a Notice of Preliminary Objection dated 16th January 2026.
The court directed that the Preliminary Objection be canvassed by way of written submissions 7 days a piece with a mention on 5th February 2026 to confirm compliance, on which date only the respondent’s counsel was present and a ruling date was fixed. The court, additionally directed counsel to serve the Ruling notice.
The respondent’s objection to the instant application is based on various grounds namely;
1. Doctrine of exhaustion
That on account of the provisions of Article 234(2)(1) of the Constitution of Kenya, Section 77 of the County Governments Act and Section 85 of the Public Service Commission Act as well as Section 9(2) of the Fair Administrative Action Act, resolution of the dispute between the parties lay on the Public Service Commission (PSC) in the first instance and no evidence to that effect had been provided.
2. Doctrine of sub-judice
That the issues raised in KISUMU JR NO. E022 OF 2025 were similar to those in the instant case and the parties were the same.
3. Misjoinder of parties
That the suit against the 1st respondent was defective by dint of the provisions of Section 57 and 59 of the County Governments Act rendering the instant application fatally defective and ought to be struck out.
Respondent’s submissions
As to whether the court had jurisdiction to entertain the present proceedings, reliance was placed on the decision in Samuel Kamau Macharia V Kenya Commercial bank & 2 Others [2012] eKLR on the sources of a court’s jurisdiction to hear and determine a suit before it, to urge that the Constitution of Kenya had vested the jurisdiction in this matter on the Public Service Commission (PSC) and the procedure was mandatory as held by the Court of Appeal in Speaker of the National Assembly V James Njenga Karume [1992] eKLR and Secretary, County Publci Service Board & Another V Hulbhai Gedi Abdille [2017] eKLR. Counsel submitted that disputes relating to County Public Service employment ought to be ventilated before the PSC in the first instance and the applicant had not exhausted the requisite statutory mechanism.
Reliance was further placed on the sentiments of the court in Owners of Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd [1989] KLR on the centrality of jurisdiction.
In urging that the applicant had not exhausted the requisite dispute resolution mechanisms, counsel cited the provisions of section 59 and 77 of the County Governments Act, Public Service Commission Act and the decisions in Geoffrey Muthinja & another V Samuel Muguna Henry & 1756 Others [2015] eKLR, Republic V National Environment Management Authority [2011] eKLR and Mutanga Tea and Coffee Factory Ltd V Shikara Ltd & Another [2015] eKLR, to submit that parties must not bypass statutory forums by rushing to court for speedier or convenient processes.
Concerning sub-judice, counsel submitted that Kisumu ELRC JR No. 2022 mirrored the instant application and the issues were similar citing the decision in Barclays Bank of Kenya Ltd V Wanjiku Njuguna [2010] eKLR.
As regard misjoinder, counsel submitted that the naming of the County Secretary as the 1st respondent and omitting the County Public Service Board (CPSB) was a misjoinder as the County Secretary was not a decision maker in the contested matters.
That the misjoinder rendered the instant application incompetent, fatally defective, abuse of court process, and was premature and vexatious and the Applicant ought to be held liable for costs.
On abuse of court process, reliance was placed on the sentiments of the court in Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd [2009] eKLR to urge that the applicant had not lodged any complaint with the respondents County Public Service Board, had instituted two suits and joined the County Secretary as a party to harass the respondents and circumvent statutory processes and was therefore guilty of abuse of court process.
Applicant’s Submissions.
(Insert)
Analysis and determination
It is trite that whenever a Preliminary Objection is raised in a suit, it ought to be disposed of at the earliest possible instance owing to its potential to terminate the suit at that stage.
As to whether the respondents’ Notice of Preliminary Objection meets the threshold of a Preliminary Objection, as enunciated in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd [1969] EA 696, the court is satisfied that since the respondent was challenging the court’s jurisdiction to hear and determine the instant suit at this stage, the notice meets the threshold of a Preliminary Objection.
From the record, the respondent did not dispute any of the facts presented by the applicant and the applicant had not attached any evidence to demonstrate that it invoked the jurisdiction of the Public Service Commission (PSC) prior to the filing of the instant suit and a decision had been rendered.
The applicant’s case is that 11 employees of the 2nd respondent who were its members were demoted and redeployed vide letters dated 22nd October 2025 and the actions were further reinforced by another letter dated 29th October 2025 and other members were transferred arbitrarily which violated the members right to fair labour practices and the ex parte applicant objected vide letter dated 29th October 2025, and the court had jurisdiction to issue the Orders sought.
It requires no emphasis that the doctrine of exhaustion is an integral part of Kenya’s litigation jurisprudence and predates the Constitution of Kenya 2010 and the Fair Administrative Action Act. Article 159(2) (c) of the Constitution of Kenya enjoins courts and tribunals to promote other forms of dispute resolution and approaches, including alternative justice systems.
One of the earliest decisions on the doctrine is that of the Court of Appeal in Speaker of National Assembly V Karume (supra) where the court stated:
“In our view, there is considerable merit in the submissions that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or Act of Parliament that Procedure should be strictly followed”.
It is common ground that jurisdiction is a foundational principle in the administration of justice as submitted by the respondent’s counsel and is held in Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd (supra), and a court’s jurisdiction flowed from the constitution or legislation or both. Without jurisdiction a court of law cannot move. See Samuel Kamau Macharia & Another V Kenya Commercial Bank & 2 Others (supra).
Similarly, in NGO’s Co-ordination Board V E. G. & 4 Others: Katiba Institute Amicus Curie [2023] KESC 17 (KLR), the Supreme Court of Kenya held as follows:
“…Even when superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to the relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant 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”.
See also in this regard Geoffrey Muthinja Kabiru & 2 Others V Samuel Muguna Henry & 1756 Others (supra), Republic V Commissioner General Kenya Revenue Authority Ex Parte Sanofi Aventis Ltd [2019] eKLR, Secretary County Public Service Board & Another V Hulbhai Gedi Abdille (supra) Albert Chaurembo Mumbo & 7 others V Maurice Munyao & 148 others 2019 eKLR and Dhow House Ltd V Kenya Power and Lighting Co. Ltd [2022] KEHC 11840 (KLR).
It is trite law that the provisions of the Constitution of Kenya, County Governments Act, Public Service Commission Act and the Fair Administrative Action Act have elaborate provisions on the doctrine of exhaustion.
Under Section 9(2) of the Fair Administrative Action Act.
(1) …
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
The foregoing provisions prohibits this court, in mandatory tone to review an administrative action or decision unless it is satisfied that internal dispute resolution mechanisms and remedies have been exhausted except where the court grants an exemption pursuant to an application by the applicant.
The applicant is required to demonstrate that the circumstances of the case justify an exemption from the doctrine of exhaustion.
In the instant case, no such application was made.
Regarding grievances or disputes between a County Government and its employee(s), exhaustion is a constitutional imperative. Article 234(2)(i) of the Constitution of Kenya provides;
“The Commission (PSC) shall hear and determine appeals in respect of County Governments Public Service…”
This provision places beyond doubt the jurisdiction of the PSC to hear and determine appeals on matters germane to County Governments Public Service. This provision is amplified by the provisions of Section 77 of the County Governments Act and Sections 85 and 87(2) of the Public Service Commission Act.
Section 87 of the Public Service Commission Act provides:
(1) …
(2) 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.
This provision is couched in mandatory tone to underscore the centrality of the doctrine of exhaustion on mattes germane to employment in the County Government Public Service.
Although the Civil Procedure Act does not define the phrase civil proceedings, Section 2 of the Act provides that “suit” means
“all civil proceedings commenced in any manner prescribed.”
Needless to underscore, Section 87(2) of the Public Service Commission Act uses the phrase “any legal proceedings in any court” whose meaning has been disputed.
Under Section 85 of the Public Service Commission Act;
The Commission shall, in order to discharge its mandate under Article 234(2)(i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of—
(a) …
(b)remuneration and terms and conditions of service;
(c)disciplinary control;
(d)…
(e)…
(f)…
(g)any other decision the Commission considers to fall within its constitutional competence to hear and determine an appeal in that regard.
Finally, Section 77 of the County Governments Act provides:
(1) Any person dissatisfied by a decision made by the County Public Service Board or 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) against the decision.
Section 77(2) of the Act replicates the provisions of Section 85 of the Public Service Commission Act by exemplifying the types of appeals the Commission hears and determines.
The totality of the foregoing provisions is that any person aggrieved or affected by a decision made by a County Government or its organs or officers on matters County Public Service must lodge an appeal with the Public Service Commission in the first instance, the use of the term “may” in Section 77(1) of the County Governments Act notwithstanding.
The foregoing is fortified by the sentiments of Mumbi Ngugi J (as she then was) in James Tinai Murete & Others V County Government of Kajiado & another; Nailantei Supeyo & 19 Others; Interested Parties [2015] eKLR as follows:
“…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 the clear provisions of section 77 of the County Governments Act, that they can bypass the legislation and come to this Court by way of a constitutional provision…
First, it is my view that the legislature could not have intended to establish a dispute resolution mechanism, and then render it redundant immediately by giving parties the option to choose whether to follow it or not. Read as a whole, the provisions of section 77 of the County Governments Act evince an intention to have all disputes arising out of appointments by County Service Boards dealt with by the Public Service Commission, hence its grant to the Commission of the mandate in mandatory terms by providing that the Commission “…shall entertain appeals in respect of recruitments, selection, appointment and qualifications attached to any office”. There is no option given to a party to choose whether or not to file grievances with the Commission…
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”.
These sentiments apply with equal force to the circumstances of this case for the reason that the grievance of the Petitioner relates to terms and conditions of service of its members and transfer, which are within the jurisdiction of the Public Service Commission and which ought to have been the Petitioner’s first port of call.
The applicants’ counsel’s submission that the prescribed appellate mechanism could not address unlawful or arbitrary conduct by the respondent or that the matter had progressed significantly and that a court decision would be optimal could not avail the Applicant because it ignored a constitutionally mandated appellate process and did not demonstrate any exceptional circumstances on the basis of which the court could exempt it from the doctrine of exhaustion.
For the foregoing reasons, it is the finding of this court that the applicant’s Notice of Motion dated 25th November 2025 was filed contrary to the provisions of the Constitution of Kenya, County Governments Act, Public Service Commission Act and the Fair Administrative Action Act by invoking the court’s jurisdiction before it had exhausted the prescribed internal dispute resolution mechanisms.
The instant application was filed prematurely.
Having found as above, the issue of sub-judice and misjoinder fall by the way side.
Consequently, the respondent’s Notice of Preliminary Objection dated 16th January 2026 is allowed and the applicant’s Notice of Motion dated 25th November 2025 is struck out.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 19TH DAY OF MARCH, 2026
DR. JACOB GAKERI
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 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.
DR. JACOB GAKERI
JUDGE
FOOTNOTES
ENDNOTES
| DRAFTDRAFTRULING Kisumu ELRC Judicial Review No. E023 of 2025 | Page 16 of 16 |