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ELRCDismissedJudicial Review No E001 of 2025· [2025] KEELRC 704 (KLR)

Esuron v Turkana County Public Service Board & another (Judicial Review E001 of 2025) [2025] KEELRC 704 (KLR)

Employment and Labour Relations Court
7 March 2025
4,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed Turkana County's attempt to throw out a job applicant's case, confirming you can challenge county recruitment practices without exhausting internal appeals first.

What this practically means

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Executive summary

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The Applicant, an employee of the Turkana County Government serving as acting County Solicitor, filed an Originating Motion dated 3rd February 2025 seeking an injunction to halt interviews for the substantive County Solicitor position scheduled for 5th-7th February 2025 and an order of mandamus compelling the 1st Respondent to include his name among shortlisted candidates and interview him. He argued that his acting appointment evidenced satisfaction of prescribed qualifications under section 64(1) of the County Governments Act and that he had a legitimate expectation of shortlisting. The Respondents filed a preliminary objection dated 10th February 2025 on five grounds: frivolity and abuse of process; failure to exhaust internal mechanisms under section 9(2) of the Fair Administrative Action Act and section 77 of the County Governments Act; want of leave under Order 53 Rule 1; ambiguity as to the legal basis of the application; and abuse of process warranting dismissal with costs. The court, applying Mukisa Biscuit and related authority, held that only the exhaustion ground was a true preliminary objection, the others not being pure points of law. Relying on Masai Mara (SOPA) Ltd v Narok County Government, the court held that Order 53 does not govern constitutional judicial review under Article 47 and the FAA Act prescribes no procedure, so the mode of approaching the court could not ground striking out the suit. On exhaustion, the court held that no decision on recruitment, selection or appointment had been made - the Applicant merely sought information - so there was no appealable decision under section 77. The preliminary objection was dismissed, with costs to abide the outcome of the application.

Key legal issues

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01

Whether the grounds of the preliminary objection qualify as pure points of law

Holding

Only ground 2 (exhaustion) qualified; the grounds alleging frivolity, vexation and abuse of process were not pure points of law discernible from the pleadings.

Reasoning

Applying Mukisa Biscuit and subsequent authority, the court held that a claim that a suit is frivolous or an abuse of process requires enquiry outside the pleadings and cannot be raised as a preliminary objection. Only the exhaustion ground was a true point of law suitable for preliminary determination.

p. 4
02

Whether leave under Order 53 Rule 1 was required before instituting the application

Holding

The procedure under which the Applicant approached the court could not be a basis for striking out the suit; the FAA Act prescribes no procedure and constitutional judicial review under Article 47 is not governed by Order 53.

Reasoning

The court noted that the FAA Act does not provide a procedure for approaching the court, that administrative-law remedies were subsumed into the Constitution under Articles 47 and 23(3), and that Article 159 requires minimal formality in enforcing the Bill of Rights. The Applicant had in any event filed a chamber summons for leave, which the court directed be heard inter partes.

p. 6
03

Whether the Applicant was obliged to exhaust the appeal mechanism under section 77 of the County Governments Act

Holding

No. The failure to shortlist the Applicant was not a decision on recruitment, selection or appointment; the Applicant had no ground of appeal without the information he requested.

Reasoning

The court observed that both parties assumed the dispute fell under section 77(2)(a) but held that a demand for information and for inclusion in a shortlist is not the same as an appeal against a decision relating to employment. Since no decision had been made, there was nothing to appeal against, and the 14-day waiting period for the requested information would have expired after the interviews concluded.

p. 9

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised if facts must be ascertained or discretion exercised.
  • Order 53 of the Civil Procedure Rules does not apply to constitutional petitions seeking judicial review reliefs under Article 47; the procedure for approaching the court cannot be a basis for striking out a suit contesting violation of a right in the Bill of Rights.
  • Where no decision on recruitment, selection or appointment has been made, and the applicant merely seeks information, there is no ground of appeal under section 77 of the County Governments Act and the exhaustion doctrine is not triggered.

Court orders

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  1. 1.The preliminary objection by the Respondents dated 10th February 2025 is dismissed
  2. 2.Costs shall abide the outcome of the application

Authorities

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Legislation

  • Fair Administrative Actions Actsections 7, 8, 9(2), 9(3)
  • County Governments Act, 2012sections 64(1), 77
  • Civil Procedure Rules 2010Order 53 Rule 1
  • Kenya Law Reform Act (Law Reform Act)sections 8 and 9
  • Constitution of Kenya 2010Articles 10, 22(3), 23(3), 47, 159, 232
  • Employment and Labour Relations Court (Procedure) Rules, 2024rule 10
  • Employment and Labour Relations Court Actsection 20
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rulesnot specified

Cases cited (8)

  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
    [2014] eKLR
  • Masai Mara (SOPA) Limited v Narok County Government
    (2016) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Republic v National Environment Management Authority exparte Sound Equipment Ltd
    [2011] eKLR
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    (Petition 16 of 2019) [2023] KESC 17 (KLR)
Jurisdiction invoked
Constitution of Kenya 2010 (Article 47 read with Article 23(3)); Fair Administrative Action Act, 2015

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, "Esuron v Turkana County Public Service Board & another (Judicial Review E001 of 2025) [2025] KEELRC 704 (KLR)", Case Analysis (2025). Judicial Review No E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/704/eng@2025-03-07

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