Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNotice of Motion dated 24th May 2024 (Judicial Review proceedings)· [2025] KEELRC 2053 (KLR)

Republic v Tharaka Nithi County Public Service Board & another; Nicholas (Ex parte Applicant) (Judicial Review E004 of 2024) [2025] KEELRC 2053 (KLR)

Employment and Labour Relations Court
11 July 2025
OMOnesmus N Makau
4,243 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

#

A Kenyan court found the Public Service Commission wrongly delayed an employment appeal for over three years, but refused to undo the dismissal because too much time had passed.

What this practically means

#

Executive summary

#
The applicant, formerly Director Supply Chain Management (Job Group 'R') with Tharaka Nithi County, was redeployed in February 2020 to the post of Director of Culture. He protested that the redeployment was an unconsented redesignation, stopped attending, and was dismissed in February 2021 for desertion. He appealed to the Public Service Commission, which on 21st February 2024 upheld the dismissal as procedurally and substantively fair but found the redeployment/redesignation irregular, awarding him 12 months' salary compensation and his pension benefits. He obtained leave and filed judicial review seeking certiorari, mandamus (reinstatement and payment of the award within 14 days) and prohibition. The court first confirmed certiorari was filed within the six-month period under Order 53 rule 2 and declined to speculate on the 2nd respondent's unargued section 90 Employment Act objection. Applying the Pastoli framework, the court found no illegality or irrationality in the PSC decision, but held it was tainted by procedural impropriety: the internal appeal took over three and a half years, contrary to Article 47's guarantee of expeditious administrative action. Nevertheless, all three prerogative orders were refused: certiorari as vain, mandamus on reinstatement barred by section 12(3)(vii) of the ELRC Act (3-year limit) and on payment because the applicant did not invoke section 89 of the PSC Act enforcement jurisdiction, and prohibition as the impugned decision had already been made. The court dismissed the Notice of Motion but, holding the suit partially successful, awarded the applicant the costs of the suit. Judgment delivered at Nyeri on 11th July 2025 by Onesmus N Makau, J.

Key legal issues

#
01

Timeliness of the certiorari prayer

Holding

Leave was sought within six months of the PSC decision, so certiorari was tenable

Reasoning

Order 53 rule 2 limits leave applications for certiorari to six months. The PSC decision was delivered on 21st February 2024 and communicated on 26th February 2024; the applicant filed his chamber summons for leave on 21st May 2024, within the six-month window, so the limitation objection by the 2nd respondent failed.

p. 5
02

Grounds for reviewing the PSC decision

Holding

The PSC decision was lawful and rational but tainted with procedural impropriety due to a delay of over three and a half years in determining the applicant's appeal

Reasoning

The PSC acted within its constitutional and statutory mandate and its decision was reasoned. However, the appeal lodged on 25th June 2020 against the redeployment was only determined on 21st February 2024, long after the applicant had been dismissed, breaching Article 47's guarantee of expeditious, efficient administrative action. That delay was a valid review ground.

p. 8
03

Entitlement to discretionary relief notwithstanding a proven ground

Holding

Even where a review ground is established, the court may refuse the prerogative orders where they would serve no practical purpose

Reasoning

The court found procedural impropriety but refused certiorari as vain; mandamus for reinstatement and payment was refused for lack of jurisdiction and improper invocation of section 89 of the PSC Act; prohibition was refused as the decision had already been made. Discretionary remedies will not issue where they would amount to vanity.

p. 9

Legal principles established

#
  • Judicial review of administrative decisions lies only for illegality, irrationality or procedural impropriety
  • Unreasonable delay in deciding an internal appeal violates the right to fair administrative action under Article 47
  • Certiorari must be sought within six months under Order 53 rule 2

Court orders

#
  1. 1.The Notice of Motion dated 24th May 2024 is dismissed to the extent highlighted in the judgment
  2. 2.Costs of the suit awarded to the applicant because the suit succeeded partially
Jurisdiction invoked
Articles 23 and 47 of the Constitution; Order 53 Civil Procedure Rules (judicial review); ELRC Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Tharaka Nithi County Public Service Board & another; Nicholas (Ex parte Applicant) (Judicial Review E004 of 2024) [2025] KEELRC 2053 (KLR)", Case Analysis (2025). Notice of Motion dated 24th May 2024 (Judicial Review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2053/eng@2025-07-11

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