Kisii County Assembly Service Board & 2 others v Public Service Commission; Nyaoga (Interested Party) (Petition E006 of 2025) [2025] KEELRC 2778 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a discretionary PSC review process need not be exhausted before challenging a Public Service Commission decision in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to entertain the Petition given section 87(2) of the Public Service Commission Act and the doctrine of exhaustion
- 2.Whether failure to invoke the review mechanism under section 88 of the Public Service Commission Act and Regulation 24 of the Public Service Commission (County Appeals Procedures) Regulations, 2022 renders the Petition premature
- 3.Whether section 9 of the Fair Administrative Action Act bars the Petition absent an exemption under section 9(4)
- 4.Whether section 88(4) of the Public Service Commission Act ousts the Court's jurisdiction to stay or suspend the Commission's decision
Key legal issues
#Whether exhaustion of the review mechanism under section 88 of the Public Service Commission Act was a precondition to filing the Petition
No - the review mechanism is discretionary, not mandatory, and its failure to be invoked does not render the Petition incompetent
The Court examined section 88 and noted it uses the word 'may' rather than 'shall', meaning review is not compulsory. Since the Petitioners' grievance (misinterpretation of law and improper evaluation of facts) fell outside the narrow review grounds, and since the review provision is permissive, there was no mandatory internal remedy left unexhausted. The Petition was therefore properly before the Court.
Whether the constitutional avoidance principle required the Petitioners to pursue the statutory remedy first
The principle calls for judicial restraint but does not oust jurisdiction; on these facts it did not bar the Petition
Relying on Jackson Maina Ngamau, the Court accepted that constitutional avoidance calls for restraint where a statutory remedy exists, but noted the decisions relied on were distinguishable on their facts. Here a decision of the Commission had already been made and no proceeding was pending before the Commission for adjudication, so nothing barred the Court from hearing the matter.
Legal principles established
#- Where the statutory review provision is discretionary ('may' rather than 'shall'), failure to seek review does not bar a party from approaching the court
- Section 88 review under the Public Service Commission Act is limited to fresh material facts or error apparent on the record, and is not compulsory
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 17th April 2025 is dismissed
- 2.No order as to costs on the Preliminary Objection
- 3.Directions as to the disposal of the Petition to be given immediately upon delivery of the Ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(3)(d) of the Constitution (as invoked by the Petitioners)
Relief refused
#Costs of the Preliminary Objection sought by the Respondent
The objection was dismissed with no order as to costs
Costs
Preliminary Objection dismissed with no order as to costs; no costs order made on the Petition or application at this stage
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As such, the preliminary objection fails and is dismissed albeit with no order as to costs. There will be directions as to the disposal of the Petition before me immediately upon delivery of this Ruling. Orders accordingly.
In this case the Petitioners did not apply for review as it is not compulsory as the word used is “may” and not “shall” which could make it compulsory to seek a review before coming to this Court.
There is nothing that bars this Court from hearing the matter at present as there is no proceeding pending before the Respondent for adjudication.
Issues in the judgment
#The judgment inconsistently describes the party removed as Clerk - the Petitioners are said to challenge removal of the 3rd Petitioner, yet the disposition states the Interested Party was removed and the 3rd Petitioner imposed as Clerk
The ruling is styled a judgment but disposes only of the Preliminary Objection; the Petition and application remain pending
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisii County Assembly Service Board & 2 others v Public Service Commission; Nyaoga (Interested Party) (Petition E006 of 2025) [2025] KEELRC 2778 (KLR)", Case Analysis (2025). Petition dated 1st April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2778/eng@2025-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.