Esuron v Turkana County Public Service Board & another (Judicial Review E001 of 2025) [2025] KEELRC 704 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the grounds of the preliminary objection qualify as pure points of law
Only ground 2 (exhaustion) qualified; the grounds alleging frivolity, vexation and abuse of process were not pure points of law discernible from the pleadings.
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.
Whether leave under Order 53 Rule 1 was required before instituting the application
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.
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.
Whether the Applicant was obliged to exhaust the appeal mechanism under section 77 of the County Governments Act
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.
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.
Legal principles established
#- 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
#- 1.The preliminary objection by the Respondents dated 10th February 2025 is dismissed
- 2.Costs shall abide the outcome of the application
- Jurisdiction invoked
- Constitution of Kenya 2010 (Article 47 read with Article 23(3)); Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.