Okech v Migori County Public Service Board [2025] KEELRC 860 (KLR)

Okech v Migori County Public Service Board (Appeal E054 of 2024) [2025] KEELRC 860 (KLR) (18 March 2025) (Ruling)

Neutral citation: [2025] KEELRC 860 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Appeal E054 of 2024

JK Gakeri, J

March 18, 2025

Between

Tabitha Akoth Okech

Appellant

and

Migori County Public Service Board

Respondent

Ruling

1. Before the court for determination is the respondent’s Preliminary Objection dated 20th January, 2025 opposing the appellant’s appeal dated 1st October, 2024 on the grounds that: -1. The Honourable Court lacks jurisdiction to hear and determine the appeal by virtue of Article 162(2) of the Constitution of Kenya, 2010, Section 12(5) of the Employment and Labour Relations Court Act and Section 89 of the Public Service Commission Act.2. By virtue of the foregoing legal provisions, the Appeal herein is not properly filed before this Honourable Court as the Court’s jurisdiction does not extend to hearing Appeals emanating from the Public Service Commission and is limited to adopting and enforcing the decisions by the Public Service Commission.3. This Honourable Court lacking jurisdiction should not entertain this matter and must consequently dismiss the same.

Respondent’s submissions 2. As to whether the court has jurisdiction to hear and determine the appeal, the respondent’s advocate relied on the sentiments of the Court of Appeal in Owners the Motor Vessel “Lillian S” V Caltex oil (Kenya) Ltd [1989] KLRI, Joseph Muthee Kamau V David Kamau Gichure & Another [2013] eKLR and those of the Supreme Court in Samuel Macharia Kamau & Another V Kenya Commercial Bank & 2 Others [2012] eKLR to submit that a court derives its jurisdiction from written law and can only exercise the jurisdiction so conferred and without it, must down its tools.

3. As regards hearing of appeals, the advocate cited the provisions of Section 12(5) of the Employment andLabour Relations Act which prescribes the appellate jurisdiction of the Employment and Labour Relations Court, to urge that under Section 12(5), the court can only hear appeals from the Registrar of Trade Unions and such other local tribunals or commissions as expressly prescribed by law.

4. Counsel submitted that the provisions of the Public Service Commission Act do not delineate any form of appeal from the Commission to the Employment and Labour Relations Court. That the Act only allows the court to adopt decisions of the Commission for enforcement.

5. Reliance was made on the decision in Murimi V County Government of Kirinyaga & Another Public Service Commission Interested Party [2024] KEELRC 2194 (KLR) on the import of Section 89 of the Public Service Commission Act, to urge that the court’s jurisdiction is limited to enforcement of decisions of the Commission and has no appellate jurisdiction and the appellant ought to have filed a new suit before the court as opposed to an appeal.

6. Counsel urged the court to strike out the appeal with costs.

Appellant’s submissions 7. The appellant’s counsel provided a factual background of the case in order to contextualize the appeal and isolated only one issue for determination namely; whether the court has jurisdiction to hear the appeal.

8. Counsel submitted that under Article 162 of the Constitution of Kenya the Employment and Labour Relations court was established to hear Employment and Labour Relations cases and Section 12(1) and (5) of the Employment and Labour Relations Court Act prescribe the original and appellate jurisdiction of the court.

9. Counsel submitted that Section 12(5) of the Employment and Labour Relations Court Act read with Articles 10, 159 and 232 of the Constitution give the court jurisdiction to hear appeals from the Public Service Commission and the respondent’s proposition is restrictive and elevates the Public Service Commission to a position above the law and its decisions can only be reviewed by it and cannot be interrogated on appeal.

10. Counsel urged that the appeal asks the court to consider the merits of the decision of the Public Service Commission.

11. Counsel wondered what happens to a person aggrieved by a decision of the Public Service Commission.

12. According to the appellant’s counsel, the respondent’s proposal delays justice and wastes judicial resources.

13. Counsel relied on the sentiments of the Supreme Court in Nyutu Agrovet Ltd V Airtel Networks Kenya Ltd; Chartered Institute of Arbitration – Kenya Branch – [2019] KESC 11 (KLR), on the interpretation of Section 35 of the Arbitration Act on appeals from the High Court to analogize that the appellant had the right to file the instant appeal and the lacuna in the Public Service Commission Act is filled by the Constitution of Kenya.

14. Reliance was also placed on the sentiments of the court in Judges and Magistrates Vetting Board and 2 Others V Centre for Human Rights and Democracy & 11 Others [2014] KESC 9 (KLR), on supervisory jurisdiction of the High Court on ouster clauses, to the argue that the court has jurisdiction to hear the appeal even where the law expressly ousts it from doing so.

15. Reliance was also made on the Court of Appeal decision in Standard Ltd & 2 Others V Christopher Ndarathi Murungaro [2016] KECA 70 KLR on the wholistic interpretation of the Constitution.

16. Finally, counsel urges that since the Public Service Commission has no executory powers, the court is empowered to adopt and enforce its decisions.

17. According to counsel, the Public Service Commission sits as a subordinate court.

Analysis and determination 18. Briefly, the appellant was an employee of the respondent serving as the Assistant Director of Pharmaceutal Services and the respondent withheld her salary and she worked for almost one year without pay and her letters to the Respondent and its Secretary elicited no response which precipitated Kisumu ELRC Judicial Review E001 of 2024 which was struck out on the ground of exhaustion of internal reliefs.

19. Consequently, the appellant filed County Appeal No.014 of 2024 before the Public Service Commission and by a Ruling dated 18th September, 2024, the commission held that the appellant had not exhausted internal dispute resolution mechanisms and the appeal was premature.This is the decision appealed against in this court.

20. The Memorandum of Appeal sets out 4 grounds of Appeal and seeks the setting aside of the decision of the Public Service Commission.

21. The respondent’s Preliminary Objection is challenging the jurisdiction of this court to hear the appeal and guided by the sentiments of the Law JA and Sir Charles Newbold P. in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd [1969] EA 696, the Court is satisfied that the respondents Preliminary Objection dated 20th January, 2025 meets the threshold of a Preliminary Objection.

22. As correctly submitted by counsel for the parties, the only issue for determination is whether the Employment and Labour Relations Court has jurisdiction to hear and determine appeals from the Public Service Commission.

23. It is trite law that jurisdiction is everything as held in Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd Supra where Nyarangi JA stated:”Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”See also Equity Bank Ltd V Bruce Mutie Mutuku t/a Diani tour Travel [2016] eKLR.

24. Similarly, in Joseph Muthee Kamu & Another V David Mwangi Gichure & Another [2013] eKLR the Court stated“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi V Musirambo [1968] EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claim exceeds the court’s pecuniary jurisdiction.We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively.Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.”

25. As held by the Supreme Court in Samuel Kamau Macharia & Another V Kenya Commercial Bank & 2 Others (Supra), a court of law derives its jurisdiction from the Constitution or an Act of parliament for both.The court stated:“…Thus a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”What then is the appellate jurisdiction of the Employment and Labour Relations Court?

26. While the appellant’s counsel submitted that the court has jurisdiction to hear appeals from the Public Service Commission by virtue of Section 12(1) and (2) and Articles 10, 159 and 232 of the Constitution, counsel for the respondent maintained that there is no law that confers appellate jurisdiction on the ELRC to hear appeals from the Public Service Commission.

27. Whether or not a court has jurisdiction is a matter of law and in this case Article 162(2) (a) of the Constitution of Kenya does not confer appellate jurisdiction on the ELRC.

28. Indeed, no Constitutional provision confer that jurisdiction contrary to the appellant’s submission that Articles 10, 159 and 232 are read with Section 12(1) and (2) of the Employment and Labour Relations Court Act confer appellate jurisdiction on the court.

29. Section 12 of the Employment and Labour Relations Court provides that1. The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —…”The underlined portion is important because it expressly provides how original or appellate jurisdiction of the court on employment and labour relations matters is extended to the court.Relatedly, Section 12(5) of the Employment and Labour Relations Act on appellate jurisdiction, adopts a similar approach:(5)The Court shall have jurisdiction to hear and determine appeals arising from(a)decisions of the Registrar of Trade Unions; and(b)decisions of any other local tribunal or commission as may be prescribed under any written law.

30. As persuasively argued by the respondent’s counsel, decisions from other local tribunals or commissions can only be appealed against in the ELRC where written law ordains it.

31. A classical illustration are the provision of Section 52(2) of the Work Injury Benefits Act, 2007 (WIBA), which confer upon the ELRC jurisdiction to hear and determine appeals from the decisions of the Director of Work Injury Benefits.

32. It is common ground that provisions of the Public Service Commission Act do not confer upon the ELRC any jurisdiction other than enforcement of decisions of the Public Service Commission.Section 89 of the Act provides1. A person who is affected by the decision of the Commission made under this part may file the decision for enforcement by the Employment and Labour Relations Court provided for under Article 162(2) of the Constitution.2. Any person who refuses or neglects to implement the Commissions decisions is liable to disciplinary action in accordance with the applicable laws including removal from office.

33. Although counsel for the appellant admits that the court has jurisdiction to adopt the decisions of the Public Service Commission, he still argues that the court has and can exercise appellate jurisdiction over such decisions.

34. The term adoption in ordinary parlance means formal acceptance or approval or choose to take up or follow or accept responsibility.

35. The foregoing would appear to suggest that by adopting the decision of the Commission for purposes of enforcement, the decision becomes an order of the Employment and Labour Relations Court.

36. In the Courts view, the court cannot after enforcing the decisions of the Commission arrogate unto itself additional jurisdiction to hear appeals from the commission, which is not traceable to any statutory or constitutional provision.

37. As to whether the Public Service Commission sits as a subordinate court or superior court, the court expresses no opinion on account that the Public Service Commission Act does not adopt such nomenclature, something parliament could have done when it accorded the Commission power to hear appeals from employees of County Governments and other public officers, if it so intended.

38. The only court mentioned under the Public Service Commission Act is the Employment and Labour Relations Court and exclusively in relation to enforcement of decisions of the Commission.

39. The rationale for this is not difficult to find. This is because the appellate and review process provided for under the Provisions of the Public Service Commission Act after decisions have been taken by other bodies or persons against public officers, are part of the internal dispute resolution mechanism for public officers which must be exhausted before the court’s jurisdiction is invoked, as captured in many decisions such as County Public Service & Another V Hulbhai Gedi Abdille [2017] eKLR, where the Court of Appeal reiterated that:Where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime… in our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the Judicial process in the first instance”.The first port of call for public officers affected by decisions of other persons, bodies or authorities in the Public Service is the Public Service Commission. The court is the port of last resort.See James Akelerio alias Muguu & Another V Moses Kasaine Lenolkilal & 3 Others [2014] eKLR.

40. The appellant counsel’s argument that the Public Service Commission appears to be above the law, in the court’s view, does not arise for the simple reason that a person dissatisfied with the decision of the commission is entitled to ignore the decision and invoke the judicial process in the appropriate court as the commissions decisions marks the end of the internal dispute resolution mechanism and ushers in the judicial process.

41. The related argument that the process could delay justice and is a waste of judicial resources is not borne by facts as the court must ascertain the facts of the case by having the evidence tested before it for decision making.

42. Unlike arbitration, which is an alternative dispute resolution mechanism, conducted by qualified persons who hear and record evidence and prepare formal awards, members of the Public Service Commission are not necessarily advocates and there is no requirement that they be members of any professional body or possess defined academic or Professional qualifications. It is neither a tribunal nor a subordinate court from which an appeal will lie to a superior court.

43. For the foregoing reasons, it is the finding of the court that it has no jurisdiction to entertain appeals against decisions of the Public Service Commission either pursuant to the provisions of the Public Service Commission Act or any other legislation or the Constitution of Kenya, 2010.

44. In the circumstances the court has no alternative but to down its tools.

45. In the upshot, the respondent’s Preliminary Objection dated 20th January, 2025 is merited and the appellants appeal herein is struck out with no Orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 18THDAY OF MARCH, 2025. 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.