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ELRCOtherNot stated in the judgment (Notice of Motion dated 6th October, 2024 following leave granted on 3rd October, 2024)

Republic v County Government of Kakamega & 4 others; Kakamega County Public Service Board (Interested Party); Aleyo & 16 others (Ex parte Applicants) (Judicial Review E004 of 2024) [2025] KEELRC 1311 (KLR)

Employment and Labour Relations Court
8 May 2025
4,135 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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Kenya's Employment Court ruled that public officers can go straight to court when the Public Service Commission cannot grant the remedies they seek.

What this practically means

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Executive summary

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The ex-parte applicants, doctors and consultants employed by the 1st respondent, obtained leave to institute judicial review proceedings seeking declarations that their removal from the payroll and stoppage of salaries since 21st August, 2024 violated their constitutional and statutory rights; orders of prohibition and certiorari quashing show-cause letters dated 21st August, 2024; and mandamus compelling implementation of a Return to Work Formula executed on 8th May, 2024 and a promotion Roadmap of 22nd September, 2023. The respondents filed a preliminary objection contending that the court lacked jurisdiction because the applicants had failed to exhaust the appeal mechanism under Section 77 of the County Governments Act and Sections 85, 87(2) of the Public Service Commission Act, and that the declaratory prayer exceeded judicial review. The respondents filed no response to the substantive motion, leaving the applicants' facts uncontroverted. The court, per David Nderitu J, restated the Mukisa Biscuit test that a PO must rest on pure law on uncontested facts, and held that the reliefs sought — judicial review remedies and enforcement of settlements already litigated with the Commission as a party — fall outside the Commission's jurisdiction. Applying Abidha Nicholus, the court found the exhaustion doctrine inapplicable where the alternative forum cannot grant effective relief. The PO was dismissed with costs to the applicants, and the judicial review application directed to proceed to hearing on merits on a priority basis. The substantive reliefs remain for determination at the full hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Should the court allow the PO as prayed and hence strike out these judicial review proceedings? (Whether the court lacks jurisdiction because the applicants failed to exhaust the appeal mechanism under Section 77 of the County Governments Act and Sections 85, 87(2) of the Public Service Commission Act)

Key legal issues

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01

Jurisdiction and exhaustion of administrative remedies

Holding

The PO fails: the reliefs sought (certiorari, prohibition, mandamus, declarations) are not within the Commission's jurisdiction; the disputed issues concern enforcement of a Return to Work Formula and Roadmap already litigated, and the facts stand uncontroverted.

Reasoning

The court accepted the applicants' unchallenged affidavit facts prima facie. A PO must rest on uncontested facts and pure law. Section 77 of the County Governments Act and Sections 85, 87(2) of the PSC Act cover appeals against disciplinary decisions, but the reliefs sought here — judicial review orders and enforcement of court-mediated settlements — cannot be granted by the Commission. Following Abidha Nicholus, the alternative forum must be effective; the Commission lacks jurisdiction over the subject matter, so exhaustion does not bar the suit.

p. 8
02

Effect of failure to file a response

Holding

The respondents' failure to respond to the substantive motion meant the applicants' facts stood uncontroverted and were accepted prima facie for purposes of the PO.

Reasoning

The respondents were granted 14 days on 20th November, 2024 to respond to the motion but filed none. Consequently the court treated the deposed facts — removal from payroll, stoppage of salaries, show-cause letters, and non-implementation of the RTWF — as unchallenged, which undermined a PO premised on contested facts.

p. 6

Legal principles established

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  • A preliminary objection must rest on pure points of law on uncontested facts.
  • The doctrine of exhaustion applies only where the alternative mechanism is effective, fair, just and efficient; where the alternative forum lacks jurisdiction over the reliefs sought, the court may hear the matter.

Court orders

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  1. 1.The preliminary objection raised by the respondents in the notice dated 3rd February, 2025 is hereby dismissed with costs to the applicants.
  2. 2.The application for judicial review by the applicants shall proceed to hearing and determination on merits on priority basis.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 47, 162(2)(a) and 165(6) of the Constitution; Section 7 of the Fair Administrative Actions Act; Order 53 Rule 3 of the Civil Procedure Rules; Section 12 of the Employment and Labour Relations Court Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, the court finds and holds that the PO is without merit and the same is hereby denied and dismissed.
p. 9Disposition on the preliminary objection
The preliminary objection raised by the respondents in the notice dated 3rd February, 2025 is hereby dismissed with costs to the applicants.
p. 9Final orders
The application for judicial review by the applicants shall proceed to hearing and determination on merits on priority basis.
p. 9Final orders
From this celebrated decision, a PO should be based on pure point(s) of law founded on the assumption of the uncontested facts.
p. 8Nature of a preliminary objection
This court is of the considered view that the Commission shall not be timely and efiective in resolving the issues raised by the applicants as it lacks jurisdiction over the same.
p. 9Exhaustion doctrine

Issues in the judgment

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minor

Directions dated stated as 4th February, 2024 though PO is dated 3rd February, 2025 — apparent typographical year inconsistency

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 County Government of Kakamega & 4 others; Kakamega County Public Service Board (Interested Party); Aleyo & 16 others (Ex parte Applicants) (Judicial Review E004 of 2024) [2025] KEELRC 1311 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 6th October, 2024 following leave granted on 3rd October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1311/eng@2025-05-08

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