Ruto v County Government of Bomet & 2 others; County Assembly of Bomet & another (Interested Parties) (Petition E011 of 2022)  KEELRC 68 (KLR) (24 January 2023) (Ruling)
Neutral citation:  KEELRC 68 (KLR)
Republic of Kenya
Petition E011 of 2022
HS Wasilwa, J
January 24, 2023
Shadrack Kiptonui Ruto
County Government Of Bomet
County Government Of Bomet
Bomet County Public Service Board
County Assembly Of Bomet
Kenya County Government Workers Union
1.The Application before Court is the Preliminary Objection raised by the 3rd Respondents dated 24th November, 2022. The Respondents raised this Preliminary Objection to the effect that:a.That this Honourable Court lacks Jurisdiction to handle the Petition for being barred by Limitation of Actions Act.b.That the Petitioner/ Applicant has not exhausted all other existing mechanisms before approaching this Honourable Court.
2.The Parties agreed to dispose of this Preliminary Objection through written submissions.
3rd Respondent’s Submissions.
3.The Respondent herein submitted with regard to the jurisdiction of this Court that, the issues in dispute in this case arose in the year 2014 and the same are barred by limitations of action as provided for under section 90 of the Employment Act and Section 4 of the Limitation of Actions Act. It was argued that when a suit is caught up by limitation of action, the same goes to the root of the jurisdiction of the Court. To support this position, they relied on the case of Justine S Sunyai V Judicial Service Commission and another  eklr where the Court held that;
4.They also cited the case of Analect Kalia Musau v Attorney General & 2 Others  eKLR, where the Court of Appeal held that;-
5.On the doctrine of exhaustion, it was submitted that the Petitioner has not exhausted all the internal dispute resolution mechanism provided for under the law especially in Section 85 of the Public Service Commission Act and Section 77(1) & (2) of the County Government Act and cited the case of Secretary, County Public Service Board and Another V Hulbhai Gedi Abdille eklr where the Court held that;
6.The Respondent further emphasized on the need to exhaust internal dispute resolution mechanism before approaching the Court by citing several case including the case of Alfred Sifa Dena V Benjamin Kai Chilumo eklr and the case of Anthony Miano & Others V Attorney General and Others  eklr where the Court relied on a decision by A 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows: -
7.On the basis of their argument, the Respondent herein urged this Court to uphold its preliminary objection and strike out the application filed together with the Petition.
1st and 2nd Respondents’ Submissions.
8.The Respondents herein supported the Preliminary objection and submitted on the issue of jurisdiction and on whether the suit offends the provisions of Section 9 (1) -(4) of the Fair Administrative Actions Act
9.On the first issue it was submitted that the substance of the petition was on allegation that the Applicant was not issued with appointment letter having successfully passed in the interview but instead that he was given a two-year contract and on expiry he was retained on similar terms without any contract. It was argued that the Petitioner ought to have raise the issue with the 3rd Respondent in accordance with section 75(a)-(c) of the County Government Act. It was argued further that the Petitioner did not appeal the decision of the Respondent to the Public Service Commission as directed by Section 77 and Section 87 of the Public Service Commission Act. Therefore that the jurisdiction of this Court has been prematurely invoked as was held in Geofrey Muthinja Kabiru & 2 others V Samuel Munga Henry & 1756 others eklr where the Court held that;-
10.They also relied on the Court of Appeal decision in Secretary County Public Service Board V Hulbhai Gedi Abdulla  eklr where the Judges of Appeal held that;
11.On the second issue, it was submitted that the failure by the Petitioner to exhaust the internal dispute resolution mechanism violated the provisions of Section 9 (1) - (4) of the Fair Administrative Act. It was argued that the cause of action arose in the year 2014 when the Petitioner was issued with a fixed term contract instead of appointment on permanent and pensionable terms as indicated in the interview and therefore he ought to have filed this suit within the 3 years provide for under the Section 90 of the Employment Act.
12.In conclusion, the Respondent urged this Court to uphold the preliminary Objection.
13.There were no submissions for the Petitioner at the time of writing this ruling.
14.I have considered the averments and submissions of the parties herein.
15.The main issue raised by the applicant is on jurisdiction, this matter being time barred as per Section 90 of the Employment Act 2007 which envisages that an employment claim be filed within 3 years.
16.I have looked at the issues raised in the Petition which relate to failure by the Respondents to issue an appointment letter to the Petitioner.
17.The Petitioner also avers that he has worked for Respondent for 9 years. In my view the issue is not a single event but a continuing injury as per Section 90 of the Employment Act 2007.
18.The issue of limitation can only then be determined after the full determination of this petition and not as a preliminary objection.
19.As relates to the issue of an Appeal to the PSC Section 77 of the County Government Act envisages an Appeal can be filed against a decision of the County Public Service Board to the PSC. In this case however no decision has been made by the County Public Service Board as the board has been accused of inaction. There is therefore nothing appealable to the PSC.
20.In the circumstances, I find the preliminary objection not merited. It is hereby dismissed accordingly and I direct the main petition to proceed.
21.Costs in the petition.
RULING DELIVERED VIRTUALLY THIS 24TH DAY OF JANUARY, 2023.HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:-No appearance for partiesCourt Assistant - Fred