Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Co. Ltd & another (Interested Parties); Njarama (Ex parte Applicant) (Judicial Review E013 of 2024) [2025] KEELRC 2860 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can quash lower court decisions through judicial review, dismissing an attempt to strike out such a case.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection based on section 9(2) of the Fair Administrative Action Act (exhaustion of internal remedies) and Rule 10 of the FAA Rules 2024 was merited
The preliminary objection was dismissed. The application was not brought under the FAAA, so its exhaustion requirement did not apply, and the court has jurisdiction under Order 53 to review subordinate court decisions by certiorari.
The court held that the ELRC, established under Article 162(2) and of equal status to the High Court, may quash judgments, orders or decrees of subordinate courts under Order 53(2) of the Civil Procedure Rules. Since the ex-parte applicant invoked Order 53 and sections 8 and 9 of the Law Reform Act, and not the FAAA, the exhaustion requirement in section 9(2) of the FAAA could not sustain the objection. The dissatisfied party also retains a right of appeal.
Definition and propriety of a preliminary objection
Applying Mukisa Biscuits, a preliminary objection must raise a pure point of law on assumed pleaded facts; the court adopted this standard in testing the objection.
The court cited the Mukisa Biscuits formulation via the Court of Appeal in EACC v Judith Marilyn Okungu, that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. It then assessed the interested parties' objection against that standard and found it unmerited.
Legal principles established
#- The ELRC, constituted under Article 162(2) and of equal status to the High Court, has jurisdiction to entertain judicial review (certiorari) of decisions of subordinate courts under Order 53 of the Civil Procedure Rules.
- Where a judicial review application is brought solely under Order 53 of the Civil Procedure Rules and the Law Reform Act, the Fair Administrative Action Act does not apply.
Court orders
#- 1.The preliminary objection dated 12th February 2025 is dismissed
- 2.Costs of the application are awarded to the ex-parte applicant
- Jurisdiction invoked
- Articles 162(2) and 165 of the Constitution; Order 53 of the Civil Procedure Rules; supervisory jurisdiction under Article 165(6) and (7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Co. Ltd & another (Interested Parties); Njarama (Ex parte Applicant) (Judicial Review E013 of 2024) [2025] KEELRC 2860 (KLR)", Case Analysis (2025). Judicial Review application dated 13th January 2025 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2860/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.