Chrysostom Makhumbiri Agava v County Government of Vihiga & 4 Others

decision not to renew the Applicant's employment contract dated 21st March 2018 by the head of the 1st Respondent was procedurally flawed. 2) THAT this court be pleased to issue a declaration that the nonrenewal of the Applicant's employment contract dated 21st March 2018 by the head of the 1st Respondent was baseless, unfair to the Applicant and against the terms and conditions of the employment contract. 3) THAT this court be pleased to issue a declaration that the approach taken by the 2nd Respondent neither to hear nor determine the complaint dated 6th June 2023 involving nonrenewal of the Applicant's contract was unjustified, unreasonable and flawed. 4) THAT the court be pleased to issue an order of Certiorari quashing the decision made by the 3rd Respondent on County Appeal No. 087 of 2024: Chrysostom Makhumbiri Agava P/NO 20180017396 v County Public Service Board Vihiga and 2 Others dated 26th February 2025. 5) THAT this court be pleased to issue an order of Certiorari quashing the decision made by the 3rd Respondent on County Review No. 004 of 1025: Chrysostom Makhumbiri Agava P/NO201800117396 v County Public Service Board and 2 Others dated 11th June 2025. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 2 | PA G E

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6) THAT this Court be pleased to issue monetary compensation to the Applicant to the tune of twelve (12) months’ salary for unfair termination. 7) THAT this Court be pleased to issue damages in favour of the Applicant for the 1st, 2nd and 4th Respondents' breach of contract. 8) THAT this Court be pleased to issue an order of mandamus compelling the 1st and 2nd Respondents to reinstate and/or reengage the Applicant in a comparable position to that previously held before termination of the employment upon expiry of the contract. 9) THAT costs of this Application be in favour of the Applicant. 2. The application is expressed to be brought pursuant to Articles 20, 25(c), 41, 47 & 50 of the Constitution, Sections 7, 8 & 9 of the Fair Administrative Actions Act, Section 45(6) (c) of the County Governments Act and, Section 45 of the Employment Act. 3. The application is based on the grounds stated on the face of it and supported with a supporting affidavit, sworn by the Applicant on even date with several annexures thereto. The Applicant further filed a supplementary affidavit sworn on 6th May 2026 with several annexures thereto. 4. In response to the application, the 1st, 2nd, 4th & 5th Respondents, through Aggrey B. L Musiega, County Attorney, filed a preliminary ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 3 | PA G E

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objection (PO) dated 21st January 2026 premised on the grounds that – a)There is no valid suit before the Honorable Court for determination as the present proceedings were instituted without the mandatory leave of the court and in violation of Order 53 Rule 1 of the Civil Procedure Rules. b)The Honorable Court lacks the requisite jurisdiction to entertain an application for Judicial Review remedy of CERTIORARI sought under prayer 4 of the motion or grant such remedy which is expressly prohibited by Order 53 Rule 2 of the Civil Procedure Rules c) The Honorable Court lacks the requisite jurisdiction to entertain an application for Judicial Review remedy of CERTIORARI sought under prayer 4 of the motion or grant such remedy which is expressly prohibited by Order 53 Rule 2 of the Civil Procedure Rules(sic). d)The Honorable Court lacks the requisite jurisdiction to entertain application seeking judicial Review remedies of DECLARATION sought in prayer 1, 2, and 3 of the motion on account of lack of the required locus standi on the part of the Applicant to institute or maintain such application within the present proceedings. e) The matters raised in the application are all Res Judicata. f) The entire suit is gross abuse of the process of the Honorable ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 4 | PA G E

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Court. g)The suit is otherwise frivolous and or vexatious. 5. The 3rd Respondent, through Michael Maurice Ogosso, Advocate, filed the Replying Affidavit sworn by Paul Famba, the Secretary/CEO of the 3rd Respondent, on 22nd April 2026. 6. When the matter came up for directions on 18th March 2026, the court directed that the application be canvassed by way of written submissions. Mr Siwolo, for the Applicant filed written submissions dated 6th May 2026 and a supplementary thereto dated 10th June 2026, respectively. Mr. Musiega, for the 1st, 2nd, 4th & 5th Respondents filed written submissions dated 26th May 2026, while Mr Ogosso, for the 3rd Respondent filed written submissions dated 29th May 2026. II. EVIDENCE 7. The Applicant challenged the non-renewal of his contract of employment as a Chief Officer in the County Government of Vihiga. He contends that the decision was procedurally and substantively unfair, contrary to the terms of his employment contract, and the principles of fair administrative action. 8. The Applicant stated that he was appointed as Chief Officer – Water, by the County Government of Vihiga in a contract dated 21st March 2018, for a renewable term of three-years. He relied on Clause 1 of the contract that provided for renewal based on performance and at ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 5 | PA G E

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the discretion of the Governor. He further relied on Clause 8, that required the setting of performance targets, preparation of a performance contract, and periodic review of his performance. His case was that no performance appraisal was undertaken before his contract expired and not renewed. 9. The Applicant stated that following the decision in Kisumu ELRC Petition No. 34 of 2019, the tenure of Chief Officers was extended to five years. He relied on a letter dated 29th March 2021 from the Office of the Governor confirming the extension of his term. However, he stated that in December 2022, the 2nd Respondent advertised the position that he held. He applied for renewal of his contract on 20th January 2023, but, in a letter dated 25th January 2023, he was advised to re-apply for the position. 10.The Applicant maintained that he performed his duties satisfactorily while serving in various departments, including Water, Youth, Sports and Culture, and Cooperatives. He cited, among other achievements, the Vihiga Cluster Water Supply Project, development of the Cooperative Development Policy, and a Cooperatives Fund Bill, and initiatives undertaken in the Cooperatives Department. He contended that had a performance appraisal been conducted, his performance would have justified renewal of his contract. 11.The Applicant further stated that he lodged a petition dated 6th June 2023 with the 2nd Respondent, challenging the non-renewal. He ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 6 | PA G E

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alleged that he was not afforded an opportunity to be heard and that the proceedings were affected by a conflict of interest involving Dr. Josiah Akech, the Chairperson of the County Public Service Board, and Mr. Peter Inonda, the Secretary/CEO, as the latter had allegedly applied for the position of a chief officer. He complained that the 2nd Respondent (the Board) failed to determine his petition within the prescribed period. 12.The Applicant thereafter appealed to the 3rd Respondent, in County Appeal No. 087 of 2024. However, the appeal was dismissed on 26th February 2025. The Applicant challenged that decision, contending that the 3rd Respondent misinterpreted Clause 1 of his contract of employment by treating renewal as solely dependent on the Governor’s discretion, without giving effect to the reference to performance. He also faulted the 3rd Respondent (the Commission) for its reliance on the decision in Francis Chire Chachi vs Amatsi Water Services Company Limited (2012) eKLR. 13.The Applicant subsequently filed a review dated 4th March 2025, which the 3rd Respondent dismissed on 11th June 2025, upholding its earlier decision. It is on the basis of the foregoing that the Applicant file the proceedings before this court, seeking for the reliefs reproduced in the introductory part of this judgment. 14.In his Supplementary Affidavit, the Applicant gave evidence of his remuneration, stating that his last monthly earnings were ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 7 | PA G E

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Kshs242,040/=, translating to an annual income of Kshs2,904,480/=, which he relied upon in support of the quantified monetary relief sought. 15.In the replying affidavit the 3rd Respondent maintained that it acted within its constitutional and statutory mandate and that both the appeal and review proceedings were conducted fairly and in accordance with the rules of natural justice. 16.It was deposed that the 3rd Respondent is established under Article 233 of the Constitution, Article 234(2) of the Constitution, the Public Service Commission Act and the Public Service Commission (County Appeals Procedures) Regulations, 2022, with jurisdiction to hear and determine appeals concerning county public service as an independent constitutional commission under Article 249 of the Constitution. 17.It was further deposed that the Applicant lodged County Appeal No. 087 of 2024 on 27th June 2024, challenging the non-renewal of his contract as Chief Officer. The grounds of appeal included alleged breach of the renewal clause, legitimate expectation, failure to conduct a performance appraisal, failure to give reasons for nonrenewal and failure by the Vihiga County Public Service Board to determine his petition. 18.The appeal at the commission was opposed by the County Government and the County Public Service Board through affidavits ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 8 | PA G E

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sworn by Peter M. Inonda, Secretary/CEO of the Board, and Ezekiel Ayiego, County Secretary. The Applicant filed a supplementary affidavit and thereafter the parties filed written submissions as directed by the Commission. 19.It was stated that upon considering the pleadings, documents and submissions, the 3rd Respondent rendered its decision on 26th February 2025, dismissing the appeal but directed the Applicant be issued with a Certificate of Service under Section 51 of the Employment Act within 30 days. 20.The 3rd Respondent maintained that the Applicant was afforded an opportunity to present his case and that the decision was based on the applicable law, judicial precedents, and the materials placed before it. 21.It was deposed that the Applicant thereafter filed County Review No. 004 of 2025 dated 4th March 2025 under Section 88 of the Public Service Commission Act and Regulation 24 of the Public Service Commission (County Appeals) Regulations. The Respondents filed a response dated 8th April 2025 and the Applicant filed a rejoinder. On 11th June 2025, the 3rd Respondent dismissed the application for review and upheld the decision of 26th February 2025. 22.It was deposed that there was no breach rules of natural justice or procedural impropriety. It was further contended that the Applicant has not established any basis for judicial review. The 3rd Respondent therefore urges the Court to dismiss the application with costs as ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 9 | PA G E

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against it. 23.The 1st, 2nd, 4th & 5th Respondents did not file a response to the application save for the PO in opposition. III. SUBMISSIONS 24.Counsel for the Applicant submitted on five issues – Whether the Preliminary Objection dated 21st of January 2026 is merited; Whether the employment contract dated 21st March 2018 was breached? Whether the Applicant was accorded a fair hearing at the 2nd Respondent; Whether the Applicant was accorded a fair hearing at the 3rd Respondent; What reliefs are the Applicant entitled to?; and, Who shall bear the costs of this Application? 25.It was submitted that the Applicant’s employment as a Chief Officer with the County Government of Vihiga, the 1st Respondent, was governed by the Employment Contract dated 21st March 2018. Counsel contended that Clause 1 thereof provided for renewal based on performance and at the discretion of the Governor, while Clause 8 required the setting of performance targets and periodic performance reviews. 26.Counsel submitted that although contract was subsequently extended to five years, the 1st Respondent advertised the position in December 2022 and failed to renew the contract for the Applicant. It was argued that the non-renewal of the contract was unlawful because the ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 10 | P A G E

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Applicant’s performance targets were never set and no performance appraisal was undertaken as required in the contract. 27.Counsel further challenged the conduct of the 2nd Respondent, contending that the Applicant’s complaint dated 6th June 2023 was neither heard nor determined. It was submitted that the Applicant was denied a fair hearing and that there was bias and conflict of interest involving Dr. Josiah Aketch and Mr. Peter Inonda, whom the Applicant alleged had an interest in the position he previously held. Counsel also asserted that the respondents failed to give reasons for the decision and inordinately delayed in determining the complaint by the Applicant. 28.Counsel submitted that although County Appeal No. 087 of 2024, was determined on 26th February 2025, the 3rd Respondent misinterpreted Clause 1 of the contract by treating renewal as being solely at the discretion of the Governor. It was argued that the Commission failed to consider the contractual requirement that renewal was based on performance. The Applicant similarly challenged the Commission’s decision dated 11th June 2025 dismissing his application for review. 29.On the preliminary objection, Counsel submitted that leave was not required as the proceedings were brought under Sections 7, 8, 9 and 11 of the Fair Administrative Action Act, 2015 and the Fair Administrative Action (Judicial Review Procedure) Rules, 2024, ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 11 | P A G E

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rather than Order 53 of the Civil Procedure Rules. in buttressing this assertion, Counsel cited the decisions in Bhojwani & another v Director of Public Prosecutions & another [2025] KEHC 16305 (KLR) and Edwin Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR). 30.Counsel submitted that the 3rd Respondent’s interpretation of the contract amounted to an error of law and a failure to take into account relevant considerations under Section 7 of the Fair Administrative Action Act. Counsel distinguished the decision in Francis Chire Chachi v Amatsi Water Services Company Limited [2012] eKLR, arguing that the case was selectively relied upon without considering the qualification that reasons for non-renewal may be required where the contract imposes such an obligation. 31.Counsel further cited decisions in Mwangi v Gicharu & another [2025] KEHC 15962 (KLR) and Pius Kimaiyo Langat v Cooperative Bank of Kenya Ltd [2017] eKLR in support of the binding nature of contractual terms, and also cited the decision Mbatia v Kirinyaga Water & Sanitation Company [2023] KEELRC on legitimate expectation. 32.On the issue of fair administrative action, Counsel relied on Articles 25 & 47 of the Constitution and Sections 4 & 7 of the Fair Administrative Action Act. It was submitted that the failure to afford the Applicant a hearing, bias, failure to determine his complaint ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 12 | P A G E

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within the prescribed period, and other procedural defects rendered the Respondents’ actions unlawful and procedurally unfair. 33.Counsel also submitted that officers of the 5th Respondent who had previously represented the Applicant in Kisumu ELRC Petition No. 34 of 2019 subsequently swore affidavits against him, which, according to the Applicant, raised concerns of conflict of interest and procedural impropriety. 34.On reliefs sought, counsel urged the Court to declare the non-renewal procedurally flawed and contrary to the contract; issue a writ of certiorari quashing the 3rd Respondent’s decisions of 26th February 2025 and 11th June 2025; and award compensation of Kshs2,904,480/=, equivalent to 12 months gross salary based on a monthly salary of Kshs242,040/=. Counsel further submitted that the Applicant also sought Kshs14,522,400/= for five years’ loss of earnings, reinstatement and/or re-engagement in a comparable position, costs and interest. 35.In the supplementary submissions, Counsel reiterated the foregoing arguments and contended that the 3rd Respondent had failed to serve its submissions upon the Applicant, who only managed to access them through the CTS platform on 9th June 2026. Counsel maintained that the Respondents had not rebutted the allegations concerning the absence of performance appraisal, denial of a hearing, conflict of interest and breach of the contract of employment. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 13 | P A G E

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36.Counsel consequently urged the Court to find that the Respondents acted unlawfully, procedurally unfairly and in breach of the Applicant’s contract and the Fair Administrative Action Act, quash the impugned decisions of the 3rd Respondent, grant the remedies sought, and award costs. 37.Counsel for the 1st, 2nd, 4th and 5th Respondents submitted in support of grounds 1 & 2 of the PO submitting that the application is incompetent for failure to obtain leave as required under Order 53 Rule 1(1) of the Civil Procedure Rules. It was argued that leave is a mandatory prerequisite to seeking orders of certiorari, prohibition and mandamus, and that no evidence of leave was included in the pleadings. In buttressing this assertion, Counsel cited the decision in Republic v Land Adjudication Committee Githu Adjudication Section & 2 Others ex parte Peter Etharia [2011] KEHC 3018 (KLR). 38.Counsel further submitted that the prayer for certiorari was barred by Order 53 Rule 2 of the Civil Procedure Rules, which requires an application for leave to quash proceedings by certiorari to be made within six months of the impugned decision. It was contended that the Applicant approached the Court approximately 12 months after the impugned decision, rendering the claim for certiorari incompetent. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 14 | P A G E

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39.Counsel therefore argued that the Court lacked jurisdiction to entertain the claim for certiorari and urged that the application be struck out and/or dismissed with costs. 40.On the other hand, Counsel for the 3rd Respondent submitted on three issues – Whether the non-renewal of the Applicant’s contract as chief officer was unlawful; Whether the Commission exercised its jurisdiction in accordance with the Constitution and the applicable law; What is the extent of this Honourable Court’s jurisdiction in judicial review proceedings? 41.On the first issue, Counsel submitted that the Applicant was appointed as a County Chief Officer for an initial three-year term commencing 1st April 2018. Following the decision in Kisumu ELRC Petition No. 34 of 2019, the term was revised to five years, expiring on 30th March 2023. The contract contained a clause for renewal at the discretion of the Governor. 42.Counsel submitted that upon expiry of the contract, the Applicant was notified vide a letter dated 25th January 2023 that he was eligible to apply for re-appointment. Instead of applying the applicant sought for the extension or renewal of his contract as enumerated in another part of this judgment. It was submitted that such a clause neither conferred nor created an automatic right to renewal nor a legitimate expectation of renewal. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 15 | P A G E

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43.Counsel cited the decision in Transparency International-Kenya v Omondi (Civil Appeal No. 81 of 2018) [2023] KECA 174 (KLR), where the Court of Appeal held that a fixed-term contract carries no expectation of renewal and that non-renewal does not constitute unfair termination. The Court further held that the extension of a contract containing a renewal clause remained within the discretion of the employer and does not, of itself, create a legal right under the doctrine of legitimate expectation. 44.Counsel further cited the decision in Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho [2017] eKLR, in support of the proposition that a fixed-term contract carries no rights, obligations, or expectations beyond its expiry date. 45.Counsel also cited the decisions in Francis Chire Chachi v Amatsi Water Services Company Limited [2012] eKLR and Registered Trustees De La Salle Christian Brothers T/A St. Mary’s Boys’ Secondary School v Julius D.M. Baini [2017] eKLR, where the courts held that an employer is generally under no obligation to give reasons for non-renewal of a fixed-term contract unless the contract itself requires for such reasons. 46.On legitimate expectation, Counsel relied on the decision in Transparency International-Kenya v Omondi(supra), where the court cited the principles set out in Communications Commission of ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 16 | P A G E

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Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR in submitting that legitimate expectation requires a clear and unambiguous representation, a reasonable expectation, a representation induced by the decision-maker, one which the decision-maker was competent and capable of lawfully making and executing. 47.Counsel, therefore, submitted that the Applicant ought to have had no legitimate expectation that his contract would be renewed; the County Government had no legal obligation to renew it; and, the contract lawfully expired on 30th March 2023. 48.On the second issue, Counsel submitted that the Commission’s jurisdiction over appeals concerning County Government public service derives from Article 234(2)(i) of the Constitution, the County Governments Act, the Public Service Commission Act, and the Public Service Commission (County Appeals Procedures) Regulations, 2022. 49.It was submitted that the Applicant was afforded procedural fairness in that he lodged an appeal, responded to the County Government’s response, filed a rejoinder and written submissions, and was given an opportunity to present his case. It was submitted that the Commission thereafter determined the appeal on the basis of the Constitution, applicable law, and judicial precedents. Counsel stated that the Applicant was also given an opportunity to seek review, an option ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 17 | P A G E

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that he exercised and which was considered on its merits and dismissed. 50.Counsel relied on the decision in Republic v Public Procurement Administrative Review Board & 3 Others ex parte Saracen Media Limited [2018] KEHC 6160 (KLR), where the Court held that an administrative decision may be challenged on grounds of illegality, irrationality or procedural impropriety, and that certiorari will not ordinarily issue merely because the Court disagrees with the factual or legal conclusions reached by the decision-maker. 51.Counsel submitted that the Applicant had neither demonstrated that the 3rd Respondent acted outside its jurisdiction nor established illegality, irrationality, procedural impropriety or consideration of irrelevant matters. It was submitted that the decision by the commission was therefore lawful, rational, and procedurally fair. 52.On the third issue, Counsel submitted that judicial review is concerned with the decision-making process, not the merits of the decision. Counsel further cited the decision in Republic v Public Procurement Administrative Review Board & 3 Others ex parte Saracen Media Limited (supra), where the Court distinguished an appeal from judicial review and held that a reviewing court does not substitute its decision for that of the decision-maker merely because it considers the decision wrong on the merits. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 18 | P A G E

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53.Counsel further submitted that judicial review concerns jurisdiction, procedural fairness, and whether relevant or irrelevant considerations were taken into account. It was submitted that judicial review is not the proper forum for resolving contested factual issues or determining the merits contested cases. 54.On the prayer for mandamus, Counsel cited Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, where the Court of Appeal held that mandamus compels the performance of a specific public or statutory duty and cannot direct a public body to exercise a discretion in a particular manner. 55.Counsel further cited the decision in Republic v Commissioner of Lands & Another ex parte Kithinji Murugu M’ Agere, Nairobi H.C. Misc. Application No. 395 of 2012, where the Court held that mandamus issues to compel performance of a public or statutory duty and does not lie for breach of a private obligation or where the applicant has failed to establish the existence of such a duty. 56.It was submitted that the Applicant had failed to demonstrate any statutory or public duty owed to him by the Respondents, any failure or refusal by the Respondents to perform such duty, or the absence of an adequate alternative remedy. The conditions for grant of mandamus had therefore not been met. ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 19 | P A G E

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57.Counsel submitted that the Applicant’s fixed-term contract expired by effluxion of time and created no legitimate expectation of renewal. It was submitted that the 3rd Respondent properly exercised its statutory jurisdiction and afforded the Applicant procedural fairness. It was submitted that no illegality, irrationality, or procedural impropriety had been demonstrated to warrant judicial review. 58.Counsel urged the Court to dismiss and/or strike out the application in its entirety with costs. IV. ANALYSIS & DETERMINATION 59.The court has carefully read and considered the application, the affidavit in support, the PO, the replying affidavit, and the written submissions by Counsel for the parties, alongside all the cited authorities. The following issues are for determination – a) Whether the application is properly before the court. b) Whether the Applicant is entitled to the reliefs sought. c) Costs. V. COMPETENCE 60.Before this Court can delve into the merits of the application, the Court has been called to determine whether the application is properly before the Court. The 1st, 2nd, 4th & 5th Respondents contended that the application, being one for judicial review ought to ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 20 | P A G E

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have been filed only after leave was granted by the court. 61.The Applicant, on the other hand, asserted that the application is grounded on the provisions of the Fair Administrative Actions Act, which precludes the need for leave before institution of judicial review proceedings. 62.The Court is mindful of the divergent views on whether leave remains a prerequisite for instituting judicial review proceedings in the post 2010 constitutional dispensation and, whether the enactment of the Fair Administrative Actions Act displaced the requirements under Sections 8 & 9 of the Law Reform Act. In determining this issue, the Court must first establish the legal and jurisdictional foundation of the present application. 63.The rules governing the institution of judicial review proceedings in the Employment and Labour Relations Court (ELRC) are elucidated under Rule 10(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which expressly provides that – Any person who wishes to institute judicial review proceedings shall do so in accordance with Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. 64.Sections 8 & 9 of the Law Reform Act provide the statutory foundation for the prerogative orders of mandamus, prohibition, and Certiorari prescribing the procedure for seeking those remedies. Notably, Section 9(3) of the Law Reform Act imposes a six-month ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 21 | P A G E

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limitation period for an application for an order of certiorari, computed from the date of the proceedings or decision sought to be quashed. 65.Order 53 Rule 1 & 2 of the Civil procedure Rules provide – (1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —(a)a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and(b)affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent over the same subject matter and that the cause of action relates to the applicants named in the application. Emphasis Added 66.It is thus right to say that institution of judicial review proceedings before this court are premised on the provisions of Sections 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules as contrasted with the Fair Administrative Actions Act and hence a party shall seek leave before instituting judicial review proceedings before this court. 67.This Court finds and holds that the PO by the 1st, 2nd, 4th & 5th Respondents dated 21st January 2026 has merits and is hereby ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 22 | P A G E

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sustained. The application was filed without leave of court and the proceedings are thus improperly before the court. On that ground the same are hereby dismissed. 68.However, for completeness, the court further finds and holds that the contract between the Applicant and the 1st respondent expired by effluxion of time. The Applicant failed to prove any legitimate expectation arising from express or implied conduct or promise by the 1st Respondent through its authorized officers. 69.Further, the court opines that the dispute between the parties was about employment relationship that is in realm of private law. It would have been more appropriate for the Applicant to have filed an ordinary cause as opposed to judicial review that is in the purview of public law. 70.Either way, I find no merits in the Applicant’s complaints as he failed to prove a legal or contractual obligation or duty on the part of the Respondents, or either of them, to renew his contract of employment upon expiry of the same VI. COSTS 71. The court shall make no orders on costs. VII. ORDERS 50. The court finds and holds – a)That the application by the Applicant dated 15th December 2025 ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 23 | P A G E

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is hereby dismissed. b)No orders as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. …………………… DAVID NDERITU JUDGE ELRC KAKAMEGA JR NO. E011 OF 2025 JUDGMENT 24 | P A G E

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