Busia County Public Service Board & another v Public Service Commission & another (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 3014 (KLR)
The bottom line
#Kenya's Employment Court confirmed you can challenge a Public Service Commission reinstatement decision directly in court without first asking the Commission to review it.
What this practically means
#Executive summary
#Key legal issues
#Whether applicants challenging the Commission's decision on appeal must first seek review before the Commission (exhaustion of remedies)
No. Review under Section 88(1) is confined to fresh material facts and errors apparent on record; the applicants' complaint that the appeal was filed out of time was already considered by the Commission, which is functus officio on that issue, so exhaustion did not apply.
The court held that Section 88(1) restricts review to two grounds: fresh material facts and error apparent on the record. The applicants' ground - that the appeal was filed outside the 90-day window - was already raised before and determined by the Commission in paragraph 22 of its decision. Re-litigating it on review would amount to a prohibited second appeal under Section 77(4) of the County Governments Act. Since the impugned decision could not be reviewed on the applicants' intended grounds, they were entitled to move the court directly.
Whether the respondents' preliminary objections met the Mukhisa Biscuits threshold and should upheld to strike out the application
The POs were pure points of law and properly before the court, but they lacked merit; the court has jurisdiction to hear the application.
Applying the Mukhisa Biscuits test, the court found the POs were founded entirely on matters of law (Sections 77 and 85-88 of the Public Service Commission Act and Section 9 of the Fair Administrative Action Act) and thus competent. However, because the applicants were not obliged to seek review of the Commission's decision before approaching the court, the jurisdictional challenge failed.
Legal principles established
#- A dissatisfied or affected party may only apply for review of a decision of the Public Service Commission on appeal on the two specific grounds stated in Section 88(1) of the Public Service Commission Act (fresh material facts or an error apparent on the record); where the challenge is not on those grounds, the party may proceed directly to court without seeking review.
Court orders
#- 1.The preliminary objections by the respondents as per the impugned notices have no merits and the same are dismissed
- 2.The chamber summons application by the applicants dated 30th January 2025 shall proceed for consideration on merits
- 3.Costs of the POs shall be in the cause
- Jurisdiction invoked
- Articles 23(3), 41 and 162(3) of the Constitution; Sections 8, 9 and 10 of the Law Reform Act; Order 53 Rules 1 & 2 of the Civil Procedure Rules; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busia County Public Service Board & another v Public Service Commission & another (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 3014 (KLR)", Case Analysis (2025). Chamber Summons dated 30th January 2025 (Kakamega ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3014/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.