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

court and quash the decision of the 1st respondent, on the recommendation of the 2nd and 3rd respondents, based on the interviews held on 6/10/2023, appointing the interested party vide the letter dated 19/2/2025 and as admitted by the interested party in his submissions in Kakamega Constitutional Petition No. E008/2025 the assistant chief of Matina sub location. 2. THAT a prerogative order of mandamus do issue directed at the respondents to produce the merit list of candidates who participated in the interviews conducted on 6/10/2023. 3. THAT upon production of the merit list aforesaid in paragraph 2 above the 1st respondent be directed by an order of mandamus to appoint the 2nd best candidate from candidates who participated in the interviews of 6/10/2023 as the Assistant chief Matiha sub location. 4. THAT costs hereof be provided for. 2. The application was filed pursuant to leave granted by the court on 12th June 2025. 3. The application is based on the grounds stated on the face of it and supported with a statutory statement of facts and the verifying affidavit of Samuel Elondanga Amambia, the 1st Applicant, both dated 19th June 2025. 4. In response to the application the 1st Respondent through Ms. Wangechi Advocate filed a replying affidavit sworn by Paul Famba, ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 2 | PA G E

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the CEO, on 26th January 2026 with several annexures thereto. 5. The 2nd and 3rd Respondents through Mr. Juma Collins, Senior State Counsel in the Office of the Attorney General, filed grounds of opposition dated 29th April 2026. 6. Through DA Omwenga & Co Advocates, the 4th Respondent, also variously referred to as the interested party, filed a notice of preliminary objection (PO) dated 16th July 2025 that was dismissed in a ruling dated 15th January 2026. However, he also filed a replying affidavit sworn by himself on 28th January 2026 with several annexures thereto. 7. The application was canvassed by way of written submissions. Miss Ihachi for the Applicants filed written submissions dated 17th April 2026, Miss Wangechi for the 1st Respondent did not file written submissions, Mr. Juma for the 2nd and 3rd Respondents filed written submissions dated 29th April 2026 and, Mr. Omwenga for the 4th Respondent filed written submissions dated 25th February 2026. II. EVIDENCE 8. In the statement of facts and the supporting affidavit, it was stated and deposed that on 6th October 2023 each of the Applicants attended interview for the position of assistant chief of Matiha Sub-location of Kakamega County following an advertisement for a vacancy. It was deposed that the 4th Respondent attended the interview but he was allegedly not qualified by virtual of him being below the minimum ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 3 | PA G E

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age of 30yrs. He was nonetheless allowed to undergo the interview by the 3rd Respondent and subsequently appointed to the position. 9. It was further deposed that for the reason stated above, the Applicants filed Kakamega ELRC JR No. E001 of 2024 and, since the letter of appointment issued to the 4th Respondent was recalled, revoked, and or cancelled by the 2nd respondent, the matter was withdrawn. 10. It was deposed that in a surprising and blatant breach of the law and an order issued by the Court (Keli J) in the above matter the 1st Respondent reappointed the 4th Respondent to the position in a letter dated 19th February 2025. It was further deposed that this reappointment was not only illegal and unlawful but also against the legitimate expectation of the Applicants that one of them would be so appointed, and especially the one with the best score in the interview or, at least, that new interviews were to be conducted. 11. It was further deposed that the 4th Respondent has since the illegal and unlawful appointment executed the duties and functions of that office notwithstanding that he was unlawfully and illegally so appointed to that office. It was deposed that the 4th Respondent was outrightly ineligible for the said appointment based on the minimum requirements in the advert. 12. It was further deposed that the 1st Respondent failed, refused, and or neglected to inform the Applicants of the results and the score of each candidate, making the appointment of the 4th Respondent ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 4 | PA G E

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shrouded in secrecy, improprieties, and illegalities. It was deposed that the conduct of the Respondents violated various provisions of the Constitution including Articles 3, 10, 35, 47, 73, & 232. 13. In the replying affidavit for the 1st Respondent, it was deposed that the Commission has the constitutional and statutory mandate to appoint officers into public service both in substantive and acting capacity. It was further deposed that the Commission has the powers to delegate such powers to any person or body but retaining the ultimate responsibility in ensuring that the process of appointment is carried out in accordance with the law. Various provisions in the Public Service Commission Act were cited in support of the foregoing. 14. It was further deposed that in exercise of the above authority, the Commission delegated the appointment of chiefs and assistant chiefs to authorized officers in the Ministry of Interior and Coordination of National Government. 15. It was deposed that on 29th April 2024 the Commission received an appeal from the 4th Respondent protesting and appealing the decision to withdraw his letter of appointment issued on 1st February 2024. It was deposed that the Commission heard the appeal on 3rd December 2024 and, among other things, confirmed that the 4th Respondent had not attained the age of 30yrs as at the time of the interview and appointment to the impugned position. ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 5 | PA G E

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16. However, it was deposed that the Commission negated the issue of age as the advert was evidently unconstitutional in that regard as the same discriminated based on age. It was deposed that this position was taken based on decided cases and a resolution made by the Commission on 7th March 2024 to the effect that minimum age limitation, to at least 30yrs of age, for chiefs and assistant chiefs was discriminatory and hence unconstitutional. 17. It was deposed that the 4th Respondent was the most qualified and competent based on the interviews carried out on the basis of Article 232 of the Constitution and Section 36 of the Public Service Commission Act. It was further deposed that the appointment of the 4th Respondent had been revoked by the 2nd Respondent who had no such powers in law and was not an authorized officer by the Commission. 18. It was deposed that in the foregoing basis and circumstances, the Commission allowed the appointment process to continue and be concluded. Various documents and correspondences were attached to the affidavit in support of the foregoing. 19. In opposition to the application, the 2nd and 3rd Respondents filed grounds of opposition as follows – 1. THAT the Notice of Motion dated 19/06/2025 does not meet the threshold for grant of judicial remedies of certiorari and mandamus. ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 6 | PA G E

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2. THAT the application is fatally defective and incompetent for offending the mandatory provisions of order 53 Rule 7 (1) of the Civil Procedure Rules, 2010, in that, the ex-parte applicant has not annexed the verified decision sought to be quashed. 3. THAT the application is fatally and incurably defective, bad in law, an abuse of the court process misconceived and as such ought to be dismissed with costs to the Respondents. 4. THAT any actions and or omissions done by the 2nd & 3rd Respondents were done lawfully within the statutory mandate of the sais Respondents, in good faith and further the said Respondents were implementing their statutory mandate. 5. THAT the Ex-Parte Applicants have failed to follow the laid down procedure as stipulated in the Access to Information Act No. 31 of 2016, and therefore the Court has no Jurisdiction to determine prayers (2) and (3) the substantive Notice of Motion Application herein. 20. In his replying affidavit, the 4th Respondent confirmed that he was duly appointed to the position of the Assistant Chief, Matiha Sublocation vide a letter dated 1st February 2024. He deposed that he attended interview for the vacancy on 6th October 2023 after he had applied and shortlisted for the same. He further stated that at the time of his appointment on1st February 2024 he was over 30yrs of age and that he commenced duty on 6th February 2024. However, he ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 7 | PA G E

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further deposed, his appointment was revoked through a letter dated 17th April 2024 and thereafter the Applicants withdrew JR E001 of 2024 which they had filed challenging his appointment. 21. It is deposed that on 29th April 2024 he appealed the revocation of his appointment to the 1st Respondent vide a letter of even date. It was deposed that he attended the hearing of the appeal on 29th October 2024 and again on 3rd December 2024. He stated that vide a letter of 11th February 2025 the Commission reinstated him and since then he has executed his duties and functions as such. 22. The 4th Respondent attached the documents and correspondences in support of the depositions stated above. III.SUBMISSIONS 23. Counsel for the Applicants submitted that the 1st Respondent had no jurisdiction to reinstate or reappoint the 4th Respondent outside the court process as the withdrawal of the appointment was as a result of a court process. It was further submitted that the subject matter of Kakamega ELRC JR E001 of 2024 was a challenge to the appointment of the 4th Respondent who had not attained the minimum age of 30yrs as at the time of his application, shortlisting, and interview for the vacancy. It was submitted that as per the advert for the vacancy the 4th Respondent was admittedly not qualified as he had not attained the minimum age. It was submitted that after the Applicants withdrew the above proceedings, the 1st Respondent ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 8 | PA G E

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reappointed and or reinstated the 4th Respondent vide a letter dated 11th February 2025, prompting the Applicants to file the instant proceedings. 24. It is submitted that indeed the 1st Respondent found and concluded that the advert for the vacancy was discriminatory against persons below 30yrs of age and, it is on that basis that it ought to have called for a fresh advert opening the vacancy to all interested persons, instead of unilaterally reappointing or reinstating the 4th Respondent. It was submitted that the 1st Respondent effectively amended the advert without inviting all interested and qualified persons to apply. It was thus submitted that the 1st Respondent propagated the very vice of discrimination that it purported to undo by offering preferential treatment to the 4th Respondent. 25. It was submitted that the actions of the 1st Respondent violated Articles 10, 27, 47, 73, 232, and 249 of the Constitution. Basing his arguments on the decision in Pastoli V Kabale District Local Government Council & Others (2008) 2 EA 300, Counsel submitted that the decision by the 1st Respondent to reappoint or reinstate the 4th Respondent was illegal, irrational, improper, and unfair. Counsel cited several other decisions in support of the need for fairness, transparency, constitutionality, and lawfulness in appointment of public and civil servants. Counsel cited Attorney General V Kituo Cha Sheria & 7 Others (2017) eKLR and Community Advocacy & ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 9 | PA G E

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Awareness V Attorney General Nairobi HC Petition No. 243 of 2011. 26. It was further submitted while the 4th Respondent applied and was appointed to the position, many other qualified persons were equally disqualified on age and hence discriminated. It was thus illogical, illegal, unlawful, and unreasonable for the 1st Respondent to reappoint or reinstate him to the position, in a process that was tainted with discrimination, illegalities, and procedural improprieties. It was submitted that public resources were misapplied, wasted, and misused in that illegal process. 27. It was submitted that this Court has jurisdiction to reign-in the 1st Respondent and declare the appointment or reinstatement of the 4th Respondent illegal and unlawful and quash the same. 28. Counsel for the 2nd and 3rd Respondents identified the following two issues for determination – Whether the ex-parte Applicants have met the threshold for grant of judicial review order of certiorari and mandamus; and, who should meet the costs of these proceedings. 29. On the first issue, it was submitted that the Applicants did not comply with Sections 7 & 8 of Access to Information Act in seeking for the information sought in regard to the interviews carried out on 6th October 2023. It was submitted that no request for the information was made to the Respondents in accordance with the law and hence the prayer is premature and without valid legal foundation. ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 10 | P A G E

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It was further submitted that the Applicants ought to have exhausted the procedure provided for in the above law, that was legislated to actuate and implement Article 35 of the Constitution, before resulting to filing the matter in court. Counsel cited Commission for Human Rights & Justice V Khandwalla & 3 Others (2021) eKLR wherein the court followed the reasoning in Speaker of National Assembly V James Njenga Karume (2008) 1 KLR 425 to the effect that where the law provides for a pre-court procedure, litigants are obliged to exhaust that process before filing any proceedings in court. 30. It was further submitted that the 2nd and 3rd Respondents had absolutely nothing to do with the reappointment or reinstatement of the 4th Respondent that was solely executed by the 1st Respondent. It was submitted that after the 2nd Respondent confirmed that the 4th Respondent did not meet the minimum age of 30yrs as per the advert, the letter of appointment was withdrawn only for the 1st Respondent to reappoint and or reinstate him unilaterally in a process wherein the 2nd and 3rd Respondents were neither consulted nor involved. 31. In the circumstances, the court is urged to find no liability on the part of the 2nd and 3rd Respondents and dismiss the proceedings as against them with costs. 32. Counsel for the 4th Respondent submitted that the Applicants applied ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 11 | P A G E

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for the impugned vacancy alongside the 4th Respondent and were also shortlisted for interviews that were carried out on 6th October 2026. After the 4th Respondent was appointed to the position, a move that the Applicants considered unlawful as the 4th Respondent was not qualified due to his inferior age, the Applicants moved the Court in Kakamega ELRC JR E001 of 2024. It was submitted that the Applicants withdrew the above proceedings after the 2nd Respondent withdrew and revoked the illegal appointment of the 4th Respondent. 33. It was submitted that the 4th Respondent appealed the revocation of his letter of appointment by the 2nd Respondent and he was reinstated by the 1st Respondent in a letter dated 11th February 2025, and since then he has served as the Assistant Chief II of Matiha Sublocation. It was submitted that the Applicants were aggrieved by the said reappointment hence they filed these instant proceedings. 34. Counsel identified the following issues for determination – a) When was the 4th Respondent appointed as the assistant chief for Matiha Sublocation? b) How old was the 4th Respondent at the time of his appointment? c) Whether the Judicial Review Application filed herein raises any cause of action. 35. On the first issue, it was submitted that the employment relationship between the 1st and 4th Respondent started on 1st February 2024 ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 12 | P A G E

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when he was appointed to the impugned position. It is submitted that this court has thus the jurisdiction to hear and determine the subject matter hereof. 36. On the second issue, it was submitted that it is not in dispute that as at the time of his appointment on 1st February 2024 the 4th Respondent was aged 30yrs and 25 days and his appointment was therefore fair, just, and lawful. 37. On the third issue, it was submitted that the application is defective as no authority from the other Applicants was filed allowing the 1st Applicant to swear the supporting to the application. It was further argued that the supporting affidavit alluded to appointment of 24th January 2024 as opposed to the correct date of 1st February 2024. 38. It was further submitted that the 4th Respondent was not reappointed on 11th February 2025 but he was reinstated to his position to which he had been appointed on 1st February 2024. It was further submitted that no evidence was filed confirming that indeed the 1st Applicant was an interviewee for the vacancy. 39. It was submitted that the Applicants failed to prove their case to the required standard and the Court is asked to dismiss the same with costs. IV.ANALYSIS & DETERMINATION 40. There are several undisputed facts as pleaded by the Applicants and admitted and or conceded to by the Respondents. ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 13 | P A G E

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41. In a notice (re-advertisement) dated 25th August 2023 the Ministry of the Interior and Coordination of National Administration - State Department of Internal and National Government, acting on delegated powers from the1st Respondent, sent out an advert for the vacancy of the assistant chief II of Matiha Sub-Location, Kakamega County. The minimum requirements for suitable and qualified persons were that they – For appointment to this grade, a candidate must: (i) Have Kenya Certificate of Secondary Education (KCSE) mean grade C-(Minus) or its equivalent from a recognized examination body. (ii) Be not less than 30 (thirty) years of age. (iii) Be a resident of the particular Location and a person of integrity who commands respect. (iv) Certificate of Good Conduct (Current) (v) Have good communication skills; and (vi) Have certificate in computer application skills from a recognized institution. 42. It was admitted and or conceded by the Respondents that as at the time of the advert, application, shortlisting, and interviewing, the 4th Respondent had not attained the minimum age of 30yrs as prescribed in the advert. Both parties agreed that the interviews were conducted on 6th October 2023 and that the 4th Respondent was appointed to ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 14 | P A G E

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take up the impugned position on 1st January 2024. 43. Further, it was mutually agreed that the Applicants challenged the said appointment in Kakamega ELRC JR No. E001 of 2024 on the basis that the same was unfair and unlawful for the fact that the 4th Respondent had clearly and evidently not met the minimum age as required in the advert, at the time of his application, shortlisting, and appointment. 44. Following the challenge in court, the 2nd Respondent “revoked” the appointment on 17th February 2024. The 4th Respondent appealed the revocation/cancellation to the 1st Respondent. The 1st Respondent reinstated the appointment on two counts; firstly, that the age limitation was discriminatory against the 4th Respondent and, secondly, that the 2nd Respondent had no powers or authority to revoke the appointment. The 4th Respondent was thus reinstated or reappointed to the impugned position on 11th February 2025 and has ever since occupied the same and executed the duties and obligations of that office. 45. In my considered view, the issues for determination are – Whether the appointment of the 4th Respondent to the position of the Assistant Chief on 1st February 2024 and the subsequent reinstatement or reappointment on 11th February 2025 was unprocedural, irregular, and unlawful; and; Who should meet the costs of these proceedings? ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 15 | P A G E

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46. In the replying affidavit and the submissions by Counsel, the 1st Respondent argued that the limitation of the age in the advert was discriminatory against the 4th Respondent. What the Commission failed to appreciate is that if the advert was discriminatory to the 4th Respondent, based on the minimum age limit, the same was discriminatory against tens, hundreds, or thousands of other potential candidates who failed to apply on the basis of that limitation. What the 1st Respondent ended up doing in the reinstatement or reappointment of the 4th Respondent is that it discriminated against all those others who were eligible to apply for the vacancy bar the age limitation. In that regard, therefore, the 1st Respondent violated various constitutional provisions of the Constitution including Articles 10, 27, 47, 41, 73, 232, inter alia, and various statutory provisions including Section 5 of the Employment Act. 47. It matters not that as at the time of the appointment and reinstatement the 4th Respondent had attained the age of 30yrs. The process leading to his initial appointment and the subsequent reinstatement or reappointment was tainted with unconstitutionality and illegalities, mainly for being discriminatory as stated above. 48. Two wrongs cannot make a right; after confirming that the advert was discriminatory for prescribing a minimum age limit, the 1st Respondent ought to have directed that a fresh and lawful one be floated inviting all qualified and interested persons to apply. The ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 16 | P A G E

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direct reinstatement and or reappointment of the 4th Respondent gave to him undue advantage against all other qualified and interested persons who failed to apply due to the age limit. It is amazingly surprising that the Commission could not decipher such a straightforward issue. 49. The process leading to the appointment and reappointment or reinstatement of the 4th Respondent was thus tainted with illegality both in substance and procedure. It cannot stand the scrutiny of this court and must be quashed and set aside. 50. Of course, this court has jurisdiction over the subject matter as the 4th Respondent is in employment. The 4th Respondent alleged that the 1st Applicant was not an applicant for the vacancy but the other Respondents did not support that position and, in any event, they are the custodians of the records and the information concerning the entire process, and they failed, refused, and or neglected to avail the same. It is not denied that the other Applicants indeed applied for the vacancy. 51. Further, the argument that the other Applicants did not file an authority to enable the 1st Applicant to swear the supporting affidavit is hollow and unfounded as none of the Applicants filed a complaint to that effect. 52. It is not a sound argument that the Court should only be concerned with the process and not merit review. Administrative law and the ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 17 | P A G E

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jurisprudence on judicial review has now widened its scope and developed in the direction that it would be foolhardy for a court to concern itself with procedural review and then leave an illegal decision standing. Justice is about fairness and the process and the outcome are matters of justice that should concern every court. 53. While the 2nd Respondent may not have had the authority to revoke the appointment, the 1st Respondent permitted and perfected an illegality that violated the Constitution by failing to direct readvertisement and failing to appreciate that the advert was not only discriminatory against the 4th Respondent but also against many others who failed to apply based on their inferior age. 54. For all the foregoing reasons, the appointment of the 4th Respondent to the impugned position shall not stand and has to be called to this court and quashed as per prayer (a) as set out in the introductory part of this judgment. 55. The Applicants did not comply with the provisions of Sections 7 & 8 of the Access to Information Act prior to filing these proceedings and hence prayer (b)(i) shall not be granted. 56. Prayer (b)(ii) seeks to compel the 1st Respondent to hire the 2nd best candidate in the interviews conducted on 6th October 2023. However, if the Court was to allow this prayer, it would fall into the same mistake as the 1st Respondent after finding that the 4th Respondent had been discriminated yet failing to widely open its ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 18 | P A G E

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eyes to see the many others who were discriminated by virtual of falling below the minimum age. This prayer is denied. 57. Inasmuch as the Applicants had some personal interest in the outcome of these proceedings, the same were in the nature of public litigation. The court shall thus not issue an order on costs. V.ORDERS 58. The court finds and holds that the application herein has merits and makes the following orders – a) That an order of certiorari be and is hereby issued bringing into this Court and quashing the decision of the 1st Respondent as contained in the letters of 1st February 2024 and 11th February 2025 respectively appointing and reappointing or reinstating the 4th Respondent, also variously referred to as the interested party, as the assistant chief of Matiha Sub-location, Kakamega County. b) No order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 21ST DAY OF SEPTEMBER 2026. …………………… DAVID NDERITU JUDGE ELRC KAKAMEGA JR NO. E006 OF 2025 JUDGMENT 19 | P A G E

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