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ELRCStruck OutNotice of Motion dated 29th August 2023 (ELRC, Nairobi)· [2025] KEELRC 410 (KLR)

Chege v Kenyatta University & another; Public Service Commission (Interested Party) (Miscellaneous Cause E175 of 2023) [2025] KEELRC 410 (KLR)

Employment and Labour Relations Court
12 February 2025
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out a professor's attempt to enforce a Public Service Commission decision, ruling that section 89 of the PSC Act only covers county government workers, not public university employees.

What this practically means

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Executive summary

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The applicant, a permanent and pensionable Professor of Education at Kenyatta University who had served as Deputy Vice Chancellor (Administration) and later as Principal Secretary, successfully appealed to the Public Service Commission, which on 28th July 2023 set aside the university council's decision abolishing her office and ordered her reinstatement with payment of withheld salaries. The university failed to implement the decision, and the applicant filed a Notice of Motion dated 29th August 2023 under sections 74 and 89 of the Public Service Commission Act seeking adoption of the PSC decision as a judgment of the Employment and Labour Relations Court, issuance of a decree, an order compelling implementation, and an interim injunction. The respondents opposed, arguing section 89 applies only to county government public service and that substantive orders could not be sought by application. The interested party (PSC) supported the application. The court first considered the grounds of opposition as capable of disposing of the matter in limine. It held that section 89 falls under Part XV of the Public Service Commission Act, confined to appeals in respect of county government public service, and does not extend to public university employees governed by the Universities Act. The court found it had no jurisdiction under section 89 and that the application, seeking substantive orders, was procedurally defective. It struck out the application, made no order as to costs, and observed the applicant could file a petition or judicial review proceedings under Rule 10 of the ELRC (Procedure) Rules, 2024 for consideration on merit.

Key legal issues

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01

Applicability of section 89 of the Public Service Commission Act to public university employees

Holding

Section 89 does not apply; it is confined to county government public service appeals, so the court had no jurisdiction to enforce the PSC decision in this manner

Reasoning

Section 89 falls under Part XV of the Public Service Commission Act, titled 'Hearing and Determination of Appeals in Respect of County Government Public Service'. Although the PSC has broader mandate under Article 234 of the Constitution, Parliament deliberately confined section 89 to county government public service. The court cannot by judicial craft extend the provision beyond the legislature's mandate. Kenyatta University is a public university governed by the Universities Act, 2012.

p. 4
02

Correct procedural avenue for enforcing a PSC decision / challenging an administrative decision

Holding

The Notice of Motion was bad in law and struck out; the applicant was free to file a petition or judicial review proceedings under Rule 10 of the ELRC (Procedure) Rules, 2024

Reasoning

The default avenue for challenging an administrative decision, act or omission is judicial review, which may be sought via judicial review proceedings or constitutional petitions as provided under Rule 10 of the Employment and Labour Relations Court (Procedure) Rules, 2024. A party seeking substantive orders must comply with procedural rules; an application under rules 4 and 7 of the 2016 Rules could not sustain substantive relief.

p. 5

Legal principles established

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  • Section 89 of the Public Service Commission Act is restricted to enforcement of appeal decisions in respect of county government public service and does not extend to decisions concerning public university employees
  • An application seeking substantive orders is procedurally defective; substantive relief must be sought by statement of claim, petition or judicial review proceedings

Court orders

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  1. 1.The application is struck out as bad in law
  2. 2.No orders as to costs
  3. 3.Liberty noted for the applicant to approach the court under Rule 10 of the Employment and Labour Relations (Procedure) Rules, 2024 for the case to be considered on merit

Authorities

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Legislation

  • Public Service Commission ActSections 74, 89
  • Public Service RegulationsRegulation 9(7)&(3)
  • Employment and Labour Relations Court ActSections 3, 4, 20
  • Constitution of Kenya, 2010Articles 162(2)(a), 234
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4, 7
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 10
  • Universities Act
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules
Jurisdiction invoked
Sections 74 and 89 of the Public Service Commission Act; Sections 3, 4 and 20 of the Employment and Labour Relations Court Act, 2011 (invoked by applicant; court found no jurisdiction under section 89)

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, "Chege v Kenyatta University & another; Public Service Commission (Interested Party) (Miscellaneous Cause E175 of 2023) [2025] KEELRC 410 (KLR)", Case Analysis (2025). Notice of Motion dated 29th August 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/410/eng@2025-02-12

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