Republic v Public Service Commission & another; Kirinyaga County Public Service Board (Exparte Applicant) (Judicial Review E003 of 2023) [2024] KEELRC 2129 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural impropriety
Not established; the applicant was served with the appeal and given the opportunity to respond but elected not to participate
The PSC notified the applicant of the appeal by letters of 27th October 2020 and 5th February 2021, the latter sent after the Board was reconstituted. The applicant admitted receipt of the first letter. Under Regulation 10 of the 2016 Regulations, service by the Commission was the correct procedure. The failure to respond was deliberate, so natural justice was not breached.
Irrationality
Not established; the Commission considered relevant factors including procedural fairness under the Employment Act
The Commission acknowledged a valid reason existed for dismissal but found procedural fairness under sections 41, 43 and 45 of the Employment Act was not demonstrated because the applicant filed no response or evidence. The applicant also failed to prove impracticability of reinstatement. The failure to consider section 49(4) on reinstatement was immaterial given the applicant's own silence.
Illegality (jurisdiction and late appeal)
Not established; the PSC had jurisdiction to hear the appeal and to admit it out of time
Section 86(2) of the PSC Act empowers the Commission to consider an out-of-time appeal where circumstances warrant it. Although the record was silent on the reasons for admitting the late appeal, the applicant did not show that the failure to record reasons rendered the appeal a nullity. The PSC acted within its constitutional and statutory mandate.
Legal principles established
#- Judicial review succeeds only where the decision is tainted with illegality, irrationality or procedural impropriety
- A party who is given an opportunity to be heard but elects not to participate cannot later claim it was condemned unheard
- Under section 86(2) of the PSC Act the Commission may consider an appeal filed out of time where circumstances warrant it
Court orders
#- 1.Dismissal of the Notice of Motion dated 7th August 2023 (as amended on 20th December 2023) seeking certiorari to quash the PSC decision of 14th April 2021
- 2.Each party to bear its own costs
- 3.Judgment to apply to and resolve in the same manner Nyeri ELRC JR E001 of 2023 (Kenya Union of Medical Laboratory Officers matter)
- Jurisdiction invoked
- Article 47 of the Constitution and the Fair Administrative Actions Act (judicial review of administrative action); Article 234(2)(i) Constitution and PSC Act (PSC's appellate mandate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Public Service Commission & another; Kirinyaga County Public Service Board (Exparte Applicant) (Judicial Review E003 of 2023) [2024] KEELRC 2129 (KLR)", Case Analysis (2024). Nyeri ELRC JR E001 of 2023 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2129/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.