1.The Claimants are all employees of the County Government of Machakos holding various positions. The pleadings show that sometime in March 2022, the 1st Respondent advertised various positions within the County which the Claimants applied for. The pleadings also show that the Claimants were interviewed for the various positions where-after they were issued with letters of appointment to the positions.
2.It would appear that after this process, the regularity of the Claimants’ appointments aforesaid was questioned. As a result, it does appear that the impugned appointments were revoked and the Claimants asked to revert to their earlier positions at the County.
3.It is this decision to revoke the Claimants’ new positions that triggered the current suit. Together with the main claim, the Claimants filed the application dated 10th February 2023 seeking various interim reliefs to wit the following:-a.An order to compel the Respondents to reinstate the Claimants to the impugned positions and pay their salaries and benefits enjoyed by the Claimants as at December 2022.b.An order of interim injunction to restrain the Respondents from advertising and or filling the positions that the Claimants held as at December 2022.c.An order of interim injunction to restrain the Respondents from victimizing the Claimants on account of their decision to institute these proceedings.
7.Section 77 of the County Government Act provides, in part, as follows:-a.Any person dissatisfied or affected by a decision made by the County Public Service Board or a 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.b.The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of:-i.recruitment, selection, appointment and qualifications attached to any office;ii.remuneration and terms and conditions of service;iii.disciplinary control;iv.national values and principles of governance, under Article 10, and, values and principles of public service under Article 232 of the Constitution;v.retirement and other removal from service;vi.pension benefits, gratuity and any other terminal benefits; orvii.any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard.
10.The Respondents contend that the Claimants filed these proceedings without first exhausting the dispute resolution procedures set out above. As such, the proceedings offend the doctrine of exhaustion of alternative remedies.
11.Proceeding on this premise, the Respondents argue that the suit is not ripe for litigation before the court. Consequently, the court lacks the requisite jurisdiction to entertain the action.
12.On the other hand, the Claimants have challenged the validity of the preliminary objection on a number of fronts. First, they argue that there was no decision rendered by the Respondents that would have triggered the appeal process under section 77 of the County Governments Act.
13.Second, the Claimants contend that neither party has demonstrated that the subject matter of the dispute has not been the subject of the appeal process provided for under section 77 of the County Governments Act. As such, this matter can only be appropriately addressed through evidence to be tendered at the trial.
14.Third, the Claimants contend that section 77 of the County Government Act only applies where a grievant is able to get a suitable remedy before the PSC. Where the remedy sought is incapable of being granted by the PSC, the grievant may approach the court directly.
15.I think that the record demonstrates that there was indeed a decision by the 1st Respondent against the Claimants that affected the Claimants’ contracts of employment and which ought to have been the subject of appeal to the PSC. In their affidavit in support of the application for interim relief, the Claimants have annexed a letter by the 1st Respondent to the Chief Officer of the County in which the 1st Respondent states that the appointment of the Claimants to their new positions was irregular. As such, the 1st Respondent had revoked the impugned positions and asked the Claimants to revert to their earlier positions in the County.
16.In the face of this evidence, it is incorrect for the Claimants to suggest that there was no decision by the Respondents that could have triggered the appeal process under section 77 of the County Governments Act. In any event, the Claimants contend that the effect of the 1st Respondent’s directive in the aforesaid letter was to reduce their emoluments as they later realized upon receiving their December 2022 pay slips. How then can they argue that there was no decision against which they could have filed an appeal to the PSC? And if indeed there was no appealable decision as asserted by the Claimants, why did they file the various appeals evidenced in their supplementary affidavit filed in court on 4th May 2023?
17.The Claimants also contend that the Respondents have not filed pleadings that raise the issue of the Claimants’ failure to submit to the appeal process under section 77 of the County Governments Act. They contend that because of this, the objection by the Respondents based on section 77 of the County Governments Act is founded on quicksand. In the Claimants’ view, the Respondents cannot sustain this objection without furnishing the court with evidence that the Claimants have indeed failed to invoke the procedure under section 77 of the County Governments Act.
18.This argument by the Claimants is self-defeating. The fact that the Claimants had not submitted to the appeal process under section 77 of the County Governments Act at the time of filing this action is self-evident from their further affidavit filed in court on 4th May 2023. By this affidavit, the Claimants have tabled evidence showing that they filed their appeals to the PSC in March 2023 after filing this suit.
19.The Claimants also contend that some of the reliefs that they seek cannot be issued by the PSC. As such, their suit falls outside the purview of section 77 of the County Governments Act. Of significance are the reliefs relating to interim injunction orders.
20.I agree with the position expressed by the Respondents that where the law provides for an alternative mechanism for resolving a dispute, parties should pursue that mechanism before invoking the court’s jurisdiction. That said, it is generally acknowledged that the court will not insist on this approach if the alternative dispute resolution mechanism is incapable of providing the parties with a suitable remedy.
21.Indeed, the foregoing is what I understand most of the decisions on this issue to be saying. For instance, in the Court of Appeal case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille  eKLR, the court expressed itself on the subject as follows:-
22.In Republic v National Environmental Management Authority  eKLR, the Court of Appeal, whilst commenting on a series of decisions relied on by one of the parties in the action, observed as follows on the use of alternative avenues for dispute resolution: -
23.In, Republic v Migori County Secretary & another; Migori County Public Service Board (Interested Party); Ngwala & 8 others (Exparte Applicants) (Judicial Review Application E013 of 2022)  KEELRC 13209 (KLR), the court observed as follows on the same matter:-
24.What is apparent from the foregoing decisions is that courts lean towards a policy of requiring disputants to exhaust the available dispute resolution mechanisms before they approach the court with their grievances. Nevertheless, it is recognized that there are instances when this approach may not serve the ends of justice if the remedies available to a party through the alternative dispute resolution mechanism are not appropriate.
25.In the case before me, the Claimants have, in addition to the reliefs for reinstatement to their positions, prayed for interim injunctive orders. There is nothing in the law that expressly confers upon the PSC the power to grant interim injunctive reliefs in the appeals that go before it. As is apparent from sections 74 (5), 75 (4), 86 (4) and 88 (5) of the Public Service Commission Act, PSC appears to only have power to grant reliefs after hearing the appeals before it. As a matter of fact, sections 74 (4) and 88 (4) of the Act appear to bar PSC from stopping implementation of a decision that is the subject of an appeal that is pending before it.
26.Conversely, section 12 (3) of the Employment and Labour Relations Court Act grants the court power to grant interim conservatory and injunctive orders when appropriate. This is in addition to a plethora of other remedies that are at the court’s disposal.
27.In my estimation, a grievant that is in urgent need of interim relief of injunction in the first instance will be deprived of a suitable remedy if his options for dispute resolution are restricted to the PSC. This, in my view, provides sufficient justification for such grievant to bypass the grievance resolution procedure that is prescribed under section 77 of the County Government Act but only for purposes of pursuing the interim relief that is sought. Having regard to the foresaid, I am satisfied that the Claimants’ circumstances presented an exceptional reason for them to approach the court.
28.As regards the requirements of notice under section 13 A of the Government Proceedings Act, this has been satisfactorily addressed in the decision of Kenya Bus Service Ltd & another v Minister for Transport & 2 others  eKLR. Apart from impeding access to justice, this provision adds little value to our statute books.
29.Having found as above, I reach the conclusion that the Claimants’ action, in so far as it sought interim injunctive reliefs falls within the accepted exceptions to the exhaustion principle founded on sections 77 of the County Governments Act and 87(2) of the Public Service Commission Act.
30.As such, the suit will not be struck out for want of jurisdiction.
31.Instead, I order a stay of further proceedings in the cause and refer the dispute to the PSC for resolution of the appeals that are pending before it and arising from the same cause of action as this cause.
32.Meanwhile, the interim orders of injunction that were granted on 10th February 2023 shall remain in force pending the hearing and determination of the appeals before the PSC.
33.The decision of the PSC on the various appeals aforesaid shall be filed before this court for adoption as the court’s order.
34.The parties are at liberty to apply.