Republic v Public Service Commission & another; Kirinya County Public Service Board (Exparte) (Judicial Review E003 of 2023) [2023] KEELRC 3350 (KLR)
The bottom line
#A Kenyan court ruled that exhausting a mandatory PSC appeal process pauses the six-month deadline for judicial review, but your final court application must match the leave granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the legal threshold of a point of law
The objection met the threshold because limitation of actions goes to the jurisdiction of the court.
Applying the Mukisa Biscuits definition, the court held that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Since the objection raised limitation of actions, which goes to the jurisdiction of the court, it qualified as a proper preliminary objection and was considered on its merits.
Whether the judicial review application was statute barred
The application was not time barred; the six-month period ran from the final PSC decision of 28th March 2023 because exhaustion of the statutory appeal process was mandatory.
Section 87(2) of the PSC Act and section 9(2) of the Fair Administrative Action Act postpone court proceedings until internal mechanisms are exhausted. The applicant faithfully respected the doctrine of exhaustion and should not be penalized for it. The six-month limitation under Order 53 rule 2 therefore began to run from the final decision of 28th March 2023, and the motion was filed within time.
Whether the prayers in the motion were in accordance with the leave granted
The certiorari prayer's variance was minor and curable by amendment, but the prohibition prayer varied substantially and was incompetent.
The certiorari prayer added reference to the refusal to vary the decision of 28th March 2023 and omitted the description of the appeal; the court held these variances curable by amendment under Article 159(2)(d). The prohibition prayer, however, was interim in the leave application but morphed into a substantive prayer in the motion; such a variance is not allowed, so the objection succeeded only to that extent.
Whether the application was fatally defective and bad in law
Save for the prohibition prayer, the motion was not fatally defective; the slight inconsistency in the certiorari order was curable by amendment.
The court concluded that the only incurable defect was the substantive prohibition prayer. The certiorari prayer's deviations from the leave order were amendable. The objection was therefore overruled and the motion allowed to proceed, subject to amendment and to be concluded within 90 days.
Legal principles established
#- Where a statutory exhaustion requirement postpones the right to approach the court, the six-month limitation period for judicial review runs from the date the final administrative decision is rendered, not from an earlier decision.
- Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
- A variance between the relief in a judicial review motion and the leave granted is not fatal if curable by amendment, consistent with Article 159(2)(d) of the Constitution.
Court orders
#- 1.The preliminary objection on the ground of limitation period of six months under Order 53 rule 2 of the Civil Procedure Rules is overruled.
- 2.The preliminary objection succeeds only with respect to the prayer for order of prohibition, which is materially inconsistent with the leave granted on 19th July, 2023.
- 3.The notice of motion dated 7th August, 2023 may be prosecuted subject to amendment of the certiorari prayer to cure the variance with the leave order.
- 4.The motion shall be concluded within 90 days of the date of the ruling.
- 5.No order as to costs.
- 6.The ruling shall apply to Nyeri ELRC JR No.E001 of 2023, Republic v Public Service Commission and Kenya Union of Medical Laboratory Technical Officers & 2 others, Ex parte Kirinyaga County Public Service Board.
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Public Service Commission & another; Kirinya County Public Service Board (Exparte) (Judicial Review E003 of 2023) [2023] KEELRC 3350 (KLR)", Case Analysis (2023). Nyeri ELRC JR No. E002 of 2023 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3350/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.