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ELRCOtherChamber Summons dated 30th January 2025 (Kakamega ELRC)· [2025] KEELRC 3014 (KLR)

Busia County Public Service Board & another v Public Service Commission & another (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 3014 (KLR)

Employment and Labour Relations Court
30 October 2025
4,419 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, the employer of the 2nd respondent, terminated her employment in September 2022. She appealed to the Public Service Commission under Section 77 of the County Governments Act, and on 19th December 2024 the Commission set aside the termination and ordered her reinstatement. The applicants then filed a chamber summons dated 30th January 2025 seeking leave to apply for orders of certiorari and prohibition against the Commission's decision, with leave to operate as stay. Both respondents filed preliminary objections contending that the court lacked jurisdiction because the applicants ought first to have sought review of the Commission's decision under Section 88 of the Public Service Commission Act and were bound by the doctrine of exhaustion under Section 9 of the Fair Administrative Action Act. By consent the POs were heard first by written submissions. The court framed a single issue: whether it had jurisdiction or whether the POs should be upheld and the application struck out. Relying on the Mukhisa Biscuits threshold, the court found the POs were pure points of law but held that review under Section 88(1) is confined to fresh material facts or an error apparent on the record. Since the applicants' complaint was that the appeal was filed out of time - an issue the Commission had already considered and on which it was functus officio - the applicants were not obliged to seek review and could approach the court directly. The POs were dismissed with costs in the cause, and the chamber summons was directed to proceed to hearing on its merits.

Key legal issues

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01

Whether applicants challenging the Commission's decision on appeal must first seek review before the Commission (exhaustion of remedies)

Holding

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.

Reasoning

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.

p. 9
02

Whether the respondents' preliminary objections met the Mukhisa Biscuits threshold and should upheld to strike out the application

Holding

The POs were pure points of law and properly before the court, but they lacked merit; the court has jurisdiction to hear the application.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The preliminary objections by the respondents as per the impugned notices have no merits and the same are dismissed
  2. 2.The chamber summons application by the applicants dated 30th January 2025 shall proceed for consideration on merits
  3. 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

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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, "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.