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ELRCStruck OutJudicial Review Application (Notice of Motion dated 17th May 2022)· [2024] KEELRC 790 (KLR)

Mwangi v Public Service Commission & 2 others (Judicial Review 1 of 2023) [2024] KEELRC 790 (KLR)

Employment and Labour Relations Court
12 April 2024
OMONESMUS N MAKAU
1,987 words in judgment
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The bottom line

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A Kenyan court struck out a public officer's judicial review case because he started it in the wrong court, though he escaped paying costs.

What this practically means

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Executive summary

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The ex-parte applicant, a former Mortuary foreman with the Murang'a County Public Service Board, sought judicial review orders of certiorari, prohibition and mandamus to quash a Public Service Commission decision dated 13th October 2021 disallowing his application for review regarding salary arrears arising from an allegedly wrong job placement, and to compel a review of that placement and recomputation of his pension. The respondents opposed, contending the suit was incompetent because leave was sought from a court without jurisdiction (the High Court, an employment dispute falling within ELRC's exclusive jurisdiction) and that the application otherwise failed on the merits. The court framed three issues: competency, merits of the judicial review orders, and costs. It found the leave application was filed exactly six months after the impugned decision, within the Order 53 Rule 2 limitation period. However, it held that the High Court having acknowledged it lacked jurisdiction, the order granting leave was a nullity and there was no competent suit capable of transfer, applying Owners of Motor Vessel Lillian 'S' v Caltex. The court therefore declined to consider the merits and struck out the Notice of Motion dated 17th May 2022, but in light of the dispute's history declined to condemn the applicant to pay costs. Judgment delivered at Nyeri on 12th April 2024 by Onesmus N Makau J via Teams video conferencing with parties' consent.

Key legal issues

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01

Whether the leave to apply for certiorari was sought within the six-month limitation period under Order 53 Rule 2

Holding

Yes; the application for leave was filed exactly six months after the impugned decision, hence within time

Reasoning

The impugned decision was made on 13th October 2021 and the application for leave was filed on 12th April 2022, an interval of exactly six months. Order 53 Rule 2 requires leave for certiorari to be sought not later than six months after the proceedings. The court therefore found the application was filed within the limitation period.

p. 4
02

Whether the suit was fatally incompetent because leave was granted by a court without jurisdiction

Holding

Yes; the High Court lacked jurisdiction over an employment dispute and its order granting leave was a nullity, leaving no competent suit to transfer

Reasoning

The 1st Respondent argued, unrebutted, that the High Court lacked jurisdiction over the employment dispute under Article 162(2)(a) and 165(5)(b). Having agreed it lacked jurisdiction, the High Court's order granting leave was a nullity. Relying on Owners of Motor Vessel Lillian 'S', the court held there was no competent suit capable of transfer and the motion had to be struck out without considering the merits.

p. 4

Legal principles established

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  • An order of leave granted by a court without jurisdiction is a nullity and no competent suit can be founded on it or transferred to a court of competent jurisdiction
  • Jurisdiction is fundamental; a court without jurisdiction cannot make a valid order

Court orders

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  1. 1.The Notice of Motion dated 17th May 2022 is struck out.
  2. 2.No costs awarded against the applicant; each party to bear its own costs (the court declined to condemn the applicant to pay costs).

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 27, 47, 48, 162(2)(a), 165(5)(b), 258
  • Civil Procedure RulesOrder 53 Rules 2 and 3
  • Public Service Commission ActSection 89(1)
  • Employment and Labour Relations Court ActSection 12
  • Fair Administrative Action ActNot specified
  • PSC (County Government Public Service Appeals) Regulations, 2016Regulations 13, 20, 23
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Elizabeth Barganza v Tysons Habenga
    Civil Appeal No.285 of 1997 (UR)
  • Republic v Kenya National Examination Council Exparte Gathoni and others
    Civil Appeal No.266 of 1996 (UR)
  • Mustafah Otieno Ochieng v The Governor, Bomet County & 15 others
    Kericho ELRC Petition No.E015 of 2022
  • Owners of Motor Vessel Lillian "S" v Caltex Kenya Ltd
    (1989) 1 KLR
Jurisdiction invoked
Article 162(2)(a) and 165(5)(b) of the Constitution (ELRC jurisdiction); motion originally filed in the High Court and transferred to the ELRC

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi v Public Service Commission & 2 others (Judicial Review 1 of 2023) [2024] KEELRC 790 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 17th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/790/eng@2024-04-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.