Esuron v Turkana County Public Service Board & another (Judicial Review E001 of 2025) [2025] KEELRC 705 (KLR)
The bottom line
#The Employment and Labour Relations Court allowed a job applicant's case against Turkana County to proceed, rejecting the county board's attempt to have it thrown out on technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds in the notice of preliminary objection qualify as pure points of law
Only the ground on failure to exhaust internal mechanisms qualified; the grounds on frivolity, abuse of process and clarity of the invoking provision are not pure points of law
Applying Mukisa Biscuit as adopted by the Supreme Court in Hassan Ali Joho, the court held that grounds requiring examination of facts or going outside the pleadings cannot be raised as preliminary objections. The frivolity/abuse ground and the lack-of-clarity ground would require the objector to go beyond pleadings and law. The leave ground was merely an objection on the format of the application.
Whether Order 53 leave requirement defeats a judicial review application anchored on Article 47 and the Fair Administrative Action Act
The procedural route adopted by the Applicant could not be a basis for striking out the suit
The court noted that the Fair Administrative Action Act does not prescribe the procedure for approaching the court; since the 2010 Constitution administrative law remedies are subsumed in Article 47 read with Article 23(3), and Order 53 does not apply to constitutional petitions. Article 159 and section 20 of the ELRC Act demand minimal regard to technicalities. The Applicant had in any event filed an ex parte chamber summons for leave which was not argued at the court's direction.
Whether failure to exhaust internal appeal mechanisms under section 9(2) FAAA and section 77 of the County Governments Act barred the application
No, the exhaustion objection failed because there was no decision on recruitment, selection or appointment in existence capable of being appealed
Although exhaustion is a valid ground for preliminary objection, the Applicant's complaint was refusal to shortlist and to give reasons. The court found no decision on recruitment, selection or appointment had been made; the Applicant was seeking information which would have been the basis of any appeal. Without that information he had no ground of appeal to the Public Service Commission under section 77, and the 14-day response period would expire after the interviews concluded.
Legal principles established
#- A preliminary objection must be a pure point of law, ascertainable from the pleadings without ascertaining facts or exercising discretion
- Where there is a clear statutory procedure for redress, that procedure should be strictly followed (exhaustion doctrine)
- Demand for information and demand to be included in a shortlist do not amount to an appealable decision on recruitment, selection or appointment under section 77 of the County Governments Act
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
- Judicial review/application under Article 47 of the Constitution and the Fair Administrative Action Act, 2015 (leave sought under Order 53 Rule 1 of the Civil Procedure Rules)
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 705 (KLR)", Case Analysis (2025). Judicial Review application dated 3rd February 2025 (Originating Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/705/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.