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ELRCPartially AllowedJudicial Review No. E006 of 2025· [2026] KEELRC 2540 (KLR)

Republic v Public Service Commission & 2 Others; John Andati Barasa (Interested Party), Ex-Parte Samuel Amambia & 4 Others

Employment and Labour Relations Court
21 September 2026
4,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed a chief's appointment made through a discriminatory age-limit process, ruling the vacancy must be re-advertised to everyone.

What this practically means

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Executive summary

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Five ex-parte applicants sought certiorari to quash the Public Service Commission's appointment and reinstatement of the interested party as Assistant Chief of Matiha Sub-location, plus mandamus to produce the merit list from interviews held on 6th October 2023 and to appoint the second-best candidate. The interested party had been appointed on 1st February 2024 despite admittedly not meeting the advertised minimum age of 30 years; after the Regional Commissioner revoked the appointment and the applicants withdrew earlier proceedings (JR E001 of 2024), he appealed to the Commission, which reinstated him by letter of 11th February 2025 on two grounds: that the age limit was discriminatory and that the Regional Commissioner lacked power to revoke. Justice David Nderitu held that once the Commission found the advertisement discriminatory, it should have directed a fresh, lawful advertisement open to all qualified persons; reinstating the interested party alone discriminated against all other potential candidates excluded by the same age limit, violating Articles 10, 27, 47, 41, 73 and 232 and Section 5 of the Employment Act. The court rejected the argument that judicial review is confined to process, holding that both process and outcome concern the court. Certiorari issued quashing both letters; the merit-list mandamus failed for non-compliance with Sections 7 and 8 of the Access to Information Act, and the appointment mandamus was refused as it would repeat the same discrimination. No order on costs was made, the suit being public litigation.

Key legal issues

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01

Legality of the appointment and reinstatement of the 4th Respondent

Holding

Both the initial appointment and the reinstatement were tainted with illegality and unconstitutionality and were quashed

Reasoning

The 4th Respondent admittedly did not meet the advertised minimum age of 30 years at application, shortlisting and interview. When the Commission found the age limit discriminatory, it should have ordered a fresh, lawful advertisement open to all; instead it reinstated him unilaterally, discriminating against all other potential candidates excluded by the same age limit and violating Articles 10, 27, 47, 41, 73 and 232 and Section 5 of the Employment Act.

p. 17
02

Whether the court should confine itself to process review and not merit review

Holding

Rejected; judicial review scope has widened and courts must concern themselves with both process and outcome

Reasoning

The court held that administrative law jurisprudence has developed such that it would be foolhardy to conduct procedural review while leaving an illegal decision standing; justice encompasses fairness in both process and outcome.

03

Jurisdiction of the ELRC and standing of the Applicants

Holding

Court had jurisdiction as the 4th Respondent is in employment; the authority-to-swear-affidavit objection was unfounded

Reasoning

The 4th Respondent's objection that the 1st Applicant lacked authority from co-Applicants and was not an interviewee failed: no complaint was raised by any Applicant, the Respondents are custodians of the records and failed to avail them, and it was not denied that the Applicants applied for the vacancy.

p. 17
04

Compliance with the Access to Information Act for the merit-list prayer

Holding

Prayer for the merit list refused for non-compliance with Sections 7 & 8 of the Act

Reasoning

The Applicants made no prior request for the information in accordance with the Act; the pre-court procedure had to be exhausted before resorting to court, hence the mandamus for the merit list was premature and not granted.

p. 18

Legal principles established

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  • Where an advertised requirement is found discriminatory, the appointing body must re-advertise the vacancy to all qualified persons rather than reinstate a single excluded candidate, which discriminates against all others excluded by the same requirement
  • Illegality in the process leading to an appointment taints the appointment even where the appointee has by then attained the qualifying age
  • Judicial review has widened beyond procedural review; a court will not leave an illegal decision standing on process-only grounds

Court orders

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  1. 1.An order of certiorari issued bringing into the Court and quashing the decision of the 1st Respondent contained in the letters of 1st February 2024 and 11th February 2025 appointing and reappointing/reinstating the 4th Respondent as assistant chief of Matiha Sub-location, Kakamega County
  2. 2.No order on costs
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; leave granted 12th June 2025; the 4th Respondent is in employment

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, "Republic v Public Service Commission & 2 Others; John Andati Barasa (Interested Party), Ex-Parte Samuel Amambia & 4 Others", Case Analysis (2026). Judicial Review No. E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2540/eng@2026-09-21

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