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ELRCDismissedNot stated in judgment (Nairobi, Judicial Review chamber summons dated 08.09.2023)· [2024] KEELRC 2700 (KLR)

County Government of Wajir & another v Public Service Commission (Judicial Review Application E048 of 2024) [2024] KEELRC 2700 (KLR)

Employment and Labour Relations Court
30 October 2024
648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to let a litigant use judicial review to reopen a Commission decision the court had already turned into its own judgment.

What this practically means

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Executive summary

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The applicants filed a chamber summons dated 08.09.2023 seeking leave to apply for orders of certiorari to quash the respondent Public Service Commission's decision decided on 19.06.2024 and transmitted by letter dated 24.06.2024, for the leave to operate as a stay of that decision, and for mandamus compelling the respondent to admit the applicant's application for review dated 30.06.2024, all under Order 53 rules 1 and 2 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and the Fair Administrative Action Act. The respondent opposed the application through grounds of opposition dated 11.10.2024, contending that the ELRC judgment of 26.07.2024 in Nairobi ELRC Petition No. E047 of 2024 (Ibrahim Abdi Mohamed & Others v Adow Osman Ahmed & Others) had adopted the Commission's decision dated 06.09.2023 as a decree of the Court, that the Court was therefore functus officio, that the Commission could not review a decision now constituting a judgment of the Court, and that the application was incompetent and an abuse of process. Ruling after oral submissions made on 17.10.2024, Byram Ongaya, Principal Judge, upheld the respondent's case on all grounds. The Court found that the leave application concerned the Commission's decision already adopted as the Court's decision, that the administrative review had been determined before adoption, and that the judicial review application was an abuse of court process. The chamber summons dated 08.09.2024 was dismissed with each party bearing its own costs, the parties being public bodies.

Key legal issues

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01

Jurisdiction/functus officio

Holding

The court lacks jurisdiction and is functus officio because the Commission's decision sought to be reviewed was already recognized, adopted and enforced as the Court's decree in ELRC Petition No. E047 of 2024.

Reasoning

Counsel for the applicants confirmed that the leave sought concerned the Commission's decision already adopted as the Court's decision. Having adopted and enforced that decision as a decree, the court cannot direct the Commission to review the same decision, as that would amount to sitting on appeal over its own judgment. The proper avenue is the Court of Appeal.

p. 2
02

Abuse of court process

Holding

The application for leave to seek judicial review is an abuse of court process.

Reasoning

Because the applicant's leave application was a subject of the Commission's decision already adopted as the Court's decision, pursuing judicial review of the same decision in these proceedings amounts to a collateral attempt to revisit a judgment of the court, which is an abuse of process warranting dismissal.

p. 3

Legal principles established

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  • A judicial officer's application for leave for judicial review that seeks review of a decision already adopted as a decree of the court is an abuse of court process.

Court orders

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  1. 1.The application by the chamber summons dated 08.09.2024 is dismissed
  2. 2.Each party to bear own costs of the proceedings
Jurisdiction invoked
Judicial review jurisdiction under Order 53 rules 1 and 2 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act, Cap 26, and the Fair Administrative Action Act

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, "County Government of Wajir & another v Public Service Commission (Judicial Review Application E048 of 2024) [2024] KEELRC 2700 (KLR)", Case Analysis (2024). Not stated in judgment (Nairobi, Judicial Review chamber summons dated 08.09.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2700/eng@2024-10-30

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