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ELRCDismissedJudicial Review application dated 3rd February 2025 (Originating Motion)· [2025] KEELRC 705 (KLR)

Esuron v Turkana County Public Service Board & another (Judicial Review E001 of 2025) [2025] KEELRC 705 (KLR)

Employment and Labour Relations Court
7 March 2025
4,142 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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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

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Executive summary

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The Applicant, a Principal Legal Counsel and acting County Solicitor in the Office of the County Attorney of Turkana County, applied by Originating Motion dated 3rd February 2025 for an injunction restraining the Respondents from conducting interviews for the position of County Solicitor scheduled for 5th to 7th February 2025, and for an order of mandamus compelling the 1st Respondent to include his name among shortlisted candidates and interview him objectively. He contended that his acting appointment proved he held the prescribed qualifications under section 64(1) of the County Governments Act and that the shortlisting criteria violated governance principles. Before the application was heard, the Respondents filed a preliminary objection dated 10th February 2025 arguing the application was frivolous, vexatious, an abuse of process, premature for failure to exhaust remedies under section 9(2) of the Fair Administrative Action Act and section 77 of the County Governments Act, and defective for want of leave under Order 53 Rule 1 and for lack of clarity of the invoking provision. The court, Onyango J, applied the Mukisa Biscuit definition of a preliminary objection and held that only the exhaustion ground was a pure point of law. On leave and procedure, the court held that the Fair Administrative Action Act prescribes no procedure, that administrative remedies are subsumed in Article 47, and that Order 53 does not apply to constitutional petitions; the Applicant had also filed a chamber summons for leave which was not argued at the court's direction. On exhaustion, the court held that no decision on recruitment, selection or appointment had been made since the Applicant was merely seeking information, and the statutory response period would have expired after the interviews. 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 in the notice of preliminary objection qualify as pure points of law

Holding

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

Reasoning

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.

p. 4
02

Whether Order 53 leave requirement defeats a judicial review application anchored on Article 47 and the Fair Administrative Action Act

Holding

The procedural route adopted by the Applicant could not be a basis for striking out the suit

Reasoning

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.

p. 6
03

Whether failure to exhaust internal appeal mechanisms under section 9(2) FAAA and section 77 of the County Governments Act barred the application

Holding

No, the exhaustion objection failed because there was no decision on recruitment, selection or appointment in existence capable of being appealed

Reasoning

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.

p. 9

Legal principles established

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  • 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

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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 Action Actsections 7, 8, 9(1)-(5)
  • County Governments Actsections 64(1), 77
  • Civil Procedure RulesOrder 53 Rule 1
  • Law Reform Actsections 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 Rules

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
    (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
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

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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 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.