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ELRCDismissedNot stated in the judgment· [2025] KEELRC 932 (KLR)

Republic v Tharaka Nithi Public Service Board & another; Nicholas (Exparte Applicant) (Employment and Labour Relations Judicial Review E004 of 2024) [2025] KEELRC 932 (KLR)

Employment and Labour Relations Court
26 March 2025
775 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a jurisdictional objection because the respondent missed a 14-day filing deadline, showing court deadlines have real, automatic consequences.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri (Makau J) disposes of a Notice of Preliminary Objection dated 25th June 2024 taken by the 1st respondent against the applicant's Notice of Motion dated 24th May 2024. The objection contended that the court lacked jurisdiction because the applicant had not exhausted the internal appeal and review mechanism under section 88 of the Public Service Commission Act and Regulation 24 of the Public Service Commission (County Appeals Procedures) Regulations 2022, which require a dissatisfied party to seek review within six months of the Commission's decision. The 1st respondent relied on the Supreme Court's decision in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others on exhaustion of alternative remedies. The applicant countered that the objection had automatically been dismissed under a court order of 23rd July 2024 which required the respondents to file submissions within 14 days, in default of which the objection would stand dismissed; the 1st respondent filed submissions only on 6th September 2024. The applicant further argued that judicial review lies where administrative bodies breach the law and the constitution, and that the 2nd respondent cannot sit on appeal over its own decision. The court framed two issues: whether the objection was moot, and whether it should be allowed. Holding that the objection was automatically dismissed by operation of the 23rd July 2024 order and that the late submissions could not resuscitate it, the court dismissed the objection as moot to pave the way for hearing of the motion, and condemned the 1st respondent to pay the applicant's costs of the objection.

Key legal issues

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01

Whether the preliminary objection was moot by virtue of the 1st respondent's default in filing submissions within 14 days as ordered on 23rd July 2024

Holding

The objection was automatically dismissed by operation of the 23rd July 2024 order and the late submissions could not revive it; the objection is moot and stands dismissed.

Reasoning

The court's order of 23rd July 2024 directed the respondents to file and serve submissions within 14 days, failing which the preliminary objection would stand dismissed automatically. The 1st respondent filed its submissions on 6th September 2024, about one and a half months late. The court held that the default triggered automatic dismissal by operation of the order, and the belated submissions were incapable of resuscitating the dismissed objection.

02

Whether the court lacks jurisdiction for failure to exhaust the PSC internal appeal/review mechanism (section 88 of the PSC Act and Regulation 24 of the PSC (County Appeals Procedures) Regulations 2022)

Holding

Not reached on the merits; the objection was dismissed as moot before this issue was determined.

Reasoning

The 1st respondent argued that the applicant was required, under section 88 of the Public Service Commission Act and Regulation 24 of the PSC (County Appeals Procedures) Regulations 2022, to seek review within six months before escalating to judicial review, relying on Geoffrey Muthinja Kabiru. The applicant countered that judicial review lies where administrative bodies breach the law and the constitution, and that the 2nd respondent cannot sit on appeal over its own decision. The court disposed of the objection on mootness without ruling on the exhaustion question.

p. 2

Legal principles established

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  • Where a party fails to comply with a court direction to file submissions within a stipulated period, with the consequence that the application or objection stands automatically dismissed, late filing cannot resuscitate it.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th June 2024 is dismissed as moot, having been automatically dismissed after 14 days from 23rd July 2024 upon the 1st respondent's failure to file submissions.
  2. 2.The dismissal paves the way for hearing of the Applicant's Notice of Motion dated 24th May 2024.
  3. 3.The 1st respondent is condemned to pay costs of the preliminary objection to the Applicant.
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court over administrative action of the Public Service Commission and county service organs (exact provision not cited in the ruling)

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, "Republic v Tharaka Nithi Public Service Board & another; Nicholas (Exparte Applicant) (Employment and Labour Relations Judicial Review E004 of 2024) [2025] KEELRC 932 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/932/eng@2025-03-26

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