Samwel v Public Service Commission & 4 others

KENYA FOREST SERVICE .......................................................... 3RD RESPONDENT THE HONOURABLE ATTORNEY GENERAL ........................ 4TH RESPONDENT GEORGE TARUS KIPKORIR ..................................................... 5TH RESPONDENT RULING 1. The petitioner, Omondi Walter Samwel, led a petition dated 20th May 2025 and inter alia, challenged the appointment of the 5th respondent, George Tarus Kipkorir, as the Secretary, Forest Conservation. While the petition was pending for hearing, the 5th respondent led a cross-petition dated 1st July 2026 together with application by way Notice of Motion dated 1st July 2026 brought under Articles 2(4), 3(1), 10, 20, 22(1), 23, 27, 28, 29, 40(1), 48, 50, 73, 232, 233,236, 259 of the Constitution of Kenya 2010, Section 1A, 1B & 3A of the Civil Procedure Act, Order 40 Rule 1 & 2 of the Civil Procedure Rules, 2010, Sections 41, 43 And 45 of the Employment Act, 2007, Sections 3, 4, And 5 of the Fair Administrative Action Act & all other enabling provisions of the Law. The applicant sought for the following ordersa. Spent b. That, this Honourable Court be pleased to issue a conservatory order staying the implementation, execution and/or enforcement of the impugned decision of the 1st Respondent purporting to revoke the Applicant/Cross-Petitioner’s lawful appointment to the oce of Secretary, Forest Development and purporting to revert the Applicant/ Cross-Petitioner from the oce of Secretary, Forest Development to the position of Principal Conservator of Forest or any other position whatsoever pending the hearing and determination of this application. c. That, this Honourable Court be pleased to issue a conservatory order staying the implementation, execution and/or enforcement of the impugned decision of the 1st Respondent purporting to revoke the Applicant/Cross-petitioner’s lawful appointment to the oce of Secretary, Forest Development and purporting to revert the Applicant Cross-Petitioner from the oce of Secretary, Forest Development to the position of Principal Conservator of Forest or any other position whatsoever pending the hearing and determination of the cross-petition. d. That, pending the hearing and determination of the Cross-Petition, this Honourable Court be pleased to issue a conservatory order directing that the Cross-Petitioner/Applicant shall continue to serve, perform and discharge the functions and duties of the oce of Secretary, Forest Development, and shall continue to enjoy all the rights, privileges, remuneration and benets attaching to that oce, without interruption. e. That, pending the hearing and determination of the Cross-Petition, the Respondents, jointly and severally, whether by themselves, their ocers, agents, servants or any person acting under their authority, be restrained from appointing, recruiting, deploying or in any manner appointing any other person to perform the substantive functions of the oce of Secretary, Forest Development. f. That, pending the hearing and determination of the Cross-Petition, the Respondents, jointly and severally, be restrained from taking any further administrative or employment action https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 2

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prejudicial to the Cross-Petitioner arising from or connected with the impugned decision, including any action calculated to demote, replace, remove, or otherwise interfere with his tenure as Secretary, Forest Development. g. That, this Honourable Court do make such further orders as it deems t for the benet of the employee and/or Cross-Petitioner herein. h. That, the Respondent does bear the costs of this application. Grounds of the application 2. That the Cross-Petitioner is the lawful and substantive holder of the oce of Secretary, Forest Development, having been appointed through an open, transparent, competitive and merit-based recruitment process conducted by the 1st Respondent. 3. That the appointment was made by the constitutionally mandated appointing authority in accordance with Articles 232, 233 and 234 of the Constitution and Sections 36 and 37 of the Public Service Commission Act. 4. That upon accepting the appointment and assuming oce, the Cross-Petitioner acquired all the rights, privileges, protections and security of tenure attaching to the substantive oce of Secretary, Forest Development. 5. That the oce of Secretary, Forest Development is a distinct substantive public oce in Public Service separate and distinct from the oce of Principal Conservator of Forest within the Kenya Forest Service. 6. That the impugned decision purporting to revoke the Cross-Petitioner's substantive appointment and revert him to the Kenya Forest Service is unconstitutional, unlawful, ultra vires, and made in bad faith and not in public interest. 7. That the 1st Respondent had exhausted its constitutional mandate upon concluding the recruitment process and making the substantive appointment and could not lawfully revisit that appointment otherwise than in accordance with the Constitution and the applicable statutory framework. 8. That having concluded the competitive recruitment process, determined the Cross-Petitioner's eligibility, and issued the letter of appointment and the Cross-Petitioner having assumed oce, the 1st Respondent became functus ocio in respect of that recruitment process and could not lawfully reopen or revisit its decision otherwise than in accordance with the Constitution and the law. 9. That the purported reconsideration of the Cross-Petitioner's qualications after completion of the recruitment process is contrary to the Public Service Commission Act and Regulations made thereunder, and oends the principles of certainty, nality and legality in public appointments. 10. That the impugned decision was made without according the Cross-Petitioner disclosure of the material relied upon, or an opportunity to be fairly heard. 11. That the impugned decision violates the Cross-Petitioner's rights to fair labour practices, fair administrative action and fair hearing as guaranteed under Articles 41, 47 and 50 of the Constitution. 12. That the impugned decision further contravenes the provisions of the Fair Administrative Action Act, the Employment Act and the Public Service Commission Act governing lawful administrative and employment decisions. 13. That the purported revocation defeats the constitutional principles of merit, transparency, accountability and fair competition governing appointments within the public service. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 3

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14. That the intended reversion of the Cross-Petitioner to the Kenya Forest Service constitutes an unlawful demotion in oce, rank, status, responsibilities and attendant benets. 15. That the 1st Respondent has no lawful authority to revert the Cross-Petitioner to the Kenya Forest Service, the previous deployment having ceased upon his substantive appointment as Secretary, Forest Development. 16. That the subsequent deployment requiring the Cross-Petitioner to continue discharging the functions of Secretary, Forest Development is inconsistent with, and undermines, the legality of the earlier decision purporting to revoke his appointment. 17. That the dispute giving rise to the Cross-Petition does not arise from any allegation of misconduct, disciplinary proceedings or employment-related fault on the part of the Cross-Petitioner. Rather, it concerns the legality and constitutionality of the Public Service Commission's decision to revisit and revoke a completed competitive recruitment process after appointing the Cross-Petitioner to a substantive public oce. 18. That the impending expiry of the deployment presents a real and imminent threat of implementation of the impugned decision unless restrained by this Honourable Court. 19. That the Cross-Petitioner has established a prima facie case with a high probability of success. 20. That unless the conservatory orders sought are granted, the Cross-Petitioner will suer irreparable constitutional, professional and employment prejudice incapable of adequate compensation by an award of damages. 21. That unless restrained, the implementation of the impugned decision will render both the present application and the Cross-Petition nugatory. 22. That the balance of convenience favours preserving the prevailing status quo pending the hearing and determination of the Cross-Petition. 23. That it is in the public interest that constitutional principles governing public appointments, security of tenure and the rule of law be safeguarded pending the determination of this dispute. 24. That it is therefore just, equitable and in the interests of justice that the conservatory orders sought be granted. 25. The applicant further led his adavit sworn on the 1st July 2026 in support of the application and annexed supporting documents. 26. The court directed the parties to appear before it to canvass the application on order 2 and 3, above, pending the hearing of the application. No responses had been lled. The parties complied and on the 9th July 2026 the parties appeared before the court with the petitioner represented by Mr Ngunjiri, the applicant/cross-petitioner and the 5th respondent by Mr. Ogutu, the 1st respondent by Ms Wangechi. The 2nd to 4th Respondents did not appear. Decision 27. The subject to the ruling were orders 2 and 3 sought in the application as follows‘2. That, this Honourable Court be pleased to issue a conservatory order staying the implementation, execution and/or enforcement of the impugned decision of the 1st Respondent purporting to revoke the Applicant/Cross-Petitioner’s lawful appointment https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 4

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to the oce of Secretary, Forest Development and purporting to revert the Applicant/ Cross-Petitioner from the oce of Secretary, Forest Development to the position of Principal Conservator of Forest or any other position whatsoever pending the hearing and determination of this application. 3. That, this Honourable Court be pleased to issue a conservatory order staying the implementation, execution and/or enforcement of the impugned decision of the 1st Respondent purporting to revoke the Applicant/Cross-petitioner’s lawful appointment to the oce of Secretary, Forest Development and purporting to revert the Applicant Cross-Petitioner from the oce of Secretary, Forest Development to the position of Principal Conservator of Forest or any other position whatsoever pending the hearing and determination of the cross-petition’ 28. The history of the cause was as follows- The cross-petitioner was a Principal Conservator of Forests in the Kenya Forest Service (KFS) before being administratively deployed to the State Department for Forestry on 3rd July 2023 to provide technical support owing to sta shortage. The applicant annexed a copy of the appointment letter and marked as "GTK-2. In 2024, the Public Service Commission advertised the position of Secretary, Forest Development for competitive recruitment. The applicant annexed hereto a copy of the advertisement and marked as "GTK-3. Following the interview, the Public Service Commission appointed the applicant to the oce of Secretary, Forest Development by a letter dated 26th February 2025. He annexed a copy of the appointment letter and marked as "GTK-4. The applicant accepted the appointment, assumed oce and commenced discharging the duties of Secretary, Forest Development in a substantive capacity eective 26th April, 2025. He annexed a copy of the appointment letter and marked as "GTK-5". The 1st Respondent subsequently revoked the appointment by a letter dated 17th September 2025 on the basis that the cross -petitioner did not satisfy the prescribed qualications for appointment. The applicant annexed a copy of the revocation letter and marked as "GTК-6. the 1st Respondent subsequently deployed me by a letter dated 6th February 2026 to serve as Director, Forest Policy and Strategic Initiatives for six (6) months ending on 6th July 2026 while requiring me to continue performing the functions of Secretary, Forest Development. I annex hereto a copy of the deployment letter and marked as "GTK-7. The applicant contended that the said deployment demonstrates that the Respondent's itself acknowledged my continued competence and the necessity of my services within the State Department for Forestry notwithstanding the purported revocation. Further, that the six-month deployment merely postponed implementation of the impugned decision and upon its expiry I stand to be unlawfully reverted to the Kenya Forest Service notwithstanding that my previous deployment had already lapsed upon my substantive appointment. The applicant contended that unless restrained by this Honourable Court, the Respondent will proceed to implement the impugned decision upon expiry of the deployment period on 6th July 2026. That unless the conservatory orders sought are granted, he stood to suer irreparable constitutional, professional and reputational prejudice through the unlawful deprivation of my substantive oce. 29. The court asked itself, what was the subject matter being conserved? The applicant stated it was the stay of the decision (the revocation) of 17th September 2025. The applicant was recommended for appointment to the impugned position of Secretary by the 1st respondent vide letter of 26th February 2026 as follows: ' Vacancy: Secretary. Forest Development Ref. Your No,MECCF/SDF/ HRM/3/11 of 16.5.2024. This is to convey the decision of the Public Service Commission that subject to compliance with the Oce of the President's Circular No.OP.3/7A/VOLX/17 of 24.5.2003, Mr. Tarus George Kipkorir, P/No.20110007273, Principal Conservator Grade 4 in the Kenya Forest Service, be appointed to ll the One (1) advertised vacancy in the grade of Secretary, Forest Development (CSG 4/Job Group. T-Salary Scale: Ksh.182,890 - Ksh.365,880 p.m.) in your Ministry https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 5

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(State Department for Forestry) w.e.f. The date he assumes duties of the post, but not later than 26.4.202 Please note that any vacancy which may occur in the next six (6) months should be declared to the Commission for lling.’’ 30. The above decision was conveyed to the applicant by the Principal Secretary vide letter dated 26th March 2025as follows: ' Secretary, Forest Development (CSG 4) Date: 26th March, 2025. I am pleased to convey the decision of the Public Service Commission vide letter Ref. No. PSC/154/6/1/1; PSC/154/6/ (3) dated 26th February, 2025 that you be appointed to the grade of Secretary, Forest Development (CSG 4) in the Public Service on Permanent and Pensionable terms of Service w.e.f. the date you assume duties but not later than 26th April, 2025. ..’’ 31. Later vide letter dated 17th September 2025, the respondent communicated to the said Principal Secretary the revocation of the said appointment as follows: ‘’Revocation Of Appointment As Secretary, Forest Development - Mr. George Of Kipkorir P/No.20110007273 This has reference to our letter Ref. PSC/LEG/019/25/062: PSC/LEG/019/25/064 dated 30.7.2025. This is to inform of you that the Public Service Commission has, following consideration of the case of revocation of appointment as Secretary, Forest Development (CSG 4/Job Group T) in respect of Mr. Tarus George Kipkorir P/No. 20110007273, and in view of the ocer's representation and your comments and recommendations: (a) (b) Decided that: (i) The post appointment of Mr. Tarus George Kipkorir P/No. 20110007273 to the vide of Secretary, Forest Development (CSG 4/Job Group T) as communicated aside; our letter Ref. No. PSC/154/6/1/1: PSC/154/6/(3) dated 26.2.2025, be set aside; (ii) The ocer reverts back to the Kenya Forest Service to the position he held before the irregular deployment/secondment as there is no evidence that he had resigned from the position as alleged; and Advised that the position of Director, Forestry Policy and Strategic Initiatives that you indicated as vacant be declared to the Commission for competitive lling.’ 32. Vide a further letter dated 6th February 2026, the 1st respondent informed the same Principal Secretary that the 1st respondent approved the deployment of the applicant from the Kenya Forest Service to the Ministry as Director for 6 months or until the post is lled as follows-‘Ref. Your No. P/ No. 20110007273 of 2.12.2025 This is to inform you that the Public Service Commission has: (a) Approved deployment of Mr. George Kipkorir Tarus, P/Nc. 20110007273. Principal Conservator, KFS Grade 4, from the Kenya Forest Service to your Ministry (State Department for Forestry - Oce of the Principal Secretary) at the grade of Director. Forest Policy and Strategic Initiatives (CSG 5/Job Group S - Salary Scale: Ksh.146.360 - Ksh.256,750 p.m.) for a period of Six (6) months, or until the post is substantively lled, whichever is earlier; and (b) Instructed that competitive lling of the vacant position be fast-tracked.’ 33. The applicant contended that the deployment ends on 6th July 2026. That the six-month deployment merely postponed implementation of the impugned decision, and upon its expiry, he stood to be unlawfully reverted to the Kenya Forest Service, notwithstanding that his previous deployment had already lapsed upon his substantive appointment. 34. The court nds that what the applicant is requesting under Orders 2 and 3 of the application amounts to his reinstatement to the position of Secretary, which was revoked by the 1st respondent via letter dated 17th September 2015. The revocation occurred on 17th September 2015. The applicant appeared to the court to have reverted to his position and was then deployed on 6th February 2026. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 6

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I nd that the orders sought in Nos. 2 and 3, while stated as a stay of the pending decision, amount to an order of reinstatement. It is well established that an order of re-instatement is a substantive order and can only be issued as a nal order. I upheld the decision in Alfred Nyungu Kimungui v Bomas Of Kenya [2013] KEELRC 235 (KLR). Although the Industrial Court has jurisdiction, as argued by the Claimant, to grant a wide range of interim reliefs and remedies in employment and labour disputes, it must exercise caution and draw a distinction between workplace disciplinary processes and the judicial process. Judicial ocers should not enter into the arena of disciplinary proceedings, determining how termination letters should be written or nullifying termination letters. The Court agrees entirely with the Respondent that whether termination was unlawful or unfair cannot be decided at the interlocutory stage. It is a matter to be determined upon the full presentation of facts. The Employment and Labour Relations Court (Procedural) Rules 2024 prohibit the issuance of orders of reinstatement at an interlocutory stage as follows: ‘53. Court not to grant orders of reinstatement.’ Notwithstanding anything contained in this Rule, the Court shall not grant an ex parte order that reinstates into employment an employee whose services have been terminated.’ The services of the applicant were terminated vide letter of 17th September 2025. The court has no power or discretion to stay the revocation as that would amount to reinstatement of the appellant at the interlocutory stage without hearing the merits of the decision of the respondent on whether it was lawful. For the foregoing reasons, the court disallows Orders 2 and 3 as sought. As relates to the other prayers in the application, the court will issue direction for disposal of the application together with cross-petition and the petition. 35. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 13TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. In The Presence Of: Petitioner- Mr. Ngunjiri Cross-petitioner- Mr. Ogutu 1st respondent – Ms. Wangechi 2nd, 3rd, and 4th respondents– Ms. Mathenge https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1976/eng@2026-07-13 7

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