Mohamed Osman Ahmed v County Public Service Board of Wajir & Wajir County Government

employment and labor disputes arising from decisions made by County Public Service Boards. c. THAT the Petition is contra Section 87(2) of the Public Service Commission Act, 2017, which contains an express statutory bar prohibiting any person from filing legal proceedings in any court of law regarding county public service disputes unless the appellate procedure provided before the Public Service Commission has been fully exhausted on its merits. d. THAT the Petition is contra Section 88 of the Public Service Commission Act, as read together with Regulation 24 of the Public Service Commission (County Appeals Procedure) Regulations, 2022 which provides that a person who is dissatisfied or affected by a decision made by the Public Service Commission following an appeal under this section may apply for review, within six (6) months. On 8th October 2025 the Public Service Commission dismissed the Petitioner’s application for leave to appeal out of time, which decision has never been challenged through review. e. THAT the Petition before the Bar is contra Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules that provides that an application for leave for orders of certiorari shall not be granted unless the same is made not later than six months after the date of the challenged decision. In context, the Petitioner herein prays for certiorari to quash a decision made on 4th August 2023, which is thirty-one (31) months later. 2 | Page

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f. THAT by reason of the foregoing, this Honourable Court lacks jurisdiction to entertain, hear, or determine the Petition, and the same must be struck out in limine with costs to the Respondent. 2. In a nutshell, the Petitioner claims violation of his constitutional rights when he was unlawfully retired, upon attaining 60 years of age, as opposed to the age of 65 years applicable to persons with disability. He avers that his attempts to review the decision through letters from his Counsel and the National council of Person Living with Disabilities were in vain. Additionally, the PSC vide its decision of 8th October 2025 declined his application for leave to file an appeal out of time. He therefore seeks: declarations that his retirement was unfair, unconstitutional, unlawful and in contravention of the laws protecting persons with disabilities; that the decision to retire him was in contravention of Section 80 of the County Service Act and Regulation 70 of the Public Service Commission Regulations; order of certiorari quashing the letter dated 4th August 2022 retiring him; reinstatement; twelve months’ salary as compensation for violation of his rights under Articles 27, 28, 41, 47 and 54 of the Constitution; twelve months’ salary as compensation in accordance with section 4(c) of the Employment Act; an order of general and aggravated damages for breach of rights; interest at 12% on above prayers together with costs. 3. In his Replying Affidavit sworn on 16th June 2026, the Petitioner deposed that the Preliminary Objection was misconceived, bad in law, fatally effective, did not raise pure points of law and an abuse of court processes. He argued that the dispute was properly within this Court’s jurisdiction under Article 162(2)(a) of the Constitution and not a judicial review application under Order 53 of the Civil 3 | Page

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Procedure Rules. He acknowledged the appeals procedure before the PSC stating that at the time he sought to appeal, the 90 days limitation period has lapsed. He added that upon realization of the lapse, he sought extension of time from PSC, which was declined. He deposed that the refusal constituted a final determination and therefore there existed no further internal mechanism to be complied with. 4. He deposed further that the assertion that he ought to have sought judicial review of the decision by the PSC is misconceived, oppressive and unsupported by law; as there is no law requiring the same as precondition for institution of an employment dispute. He stated that his claim was still within the limitation period set under Section 90 of the Employment Act. He further stated that the 6 months limitation for certiorari argued by the Respondent was wholly misplaced as the proceedings were not instituted under Order 53 of the Civil Procedure Rules. He urged that the Preliminary Objection be dismissed with costs. Submissions 5. The only issue raised by the Petitioner is whether the Preliminary Objection is merited. The Petitioner highlighted the principles established in Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, to submitting that the Respondent raised disputed factual issues that ought to be supported by evidence; that, cannot be determined at preliminary stage. 6. On the doctrine of exhaustion, reliance was placed on the decision in of Speaker of the National Assembly v Karume [1992] KLR 21. 4 | Page

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Counsel added that the Petitioner complied with the provision, and the decision by the PSC marked the completion of the process. Counsel submitted the averment that the Petition offended section 9(3) of the Law Reform Act and Order 53 of the Civil Procedure Rules was unsustainable and ought to be dismissed. 7. Reliance was placed on the Supreme Court decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR where the Court held that judicial review was now firmly anchored on Articles 23, 47 and 159(2) (d) of the Constitution. It was argued that the Court was empowered to grant judicial review reliefs within Petitions without being constrained by procedural technicalities. Counsel added that the Court had the jurisdiction as the dispute arose from an employment relationship and raised constitutional and statutory violations. It was urged that the Preliminary Objection did not meet the threshold of a Preliminary Objection and ought to be dismissed with costs, for the Court to hear and determine the Petition. 8. Similarly, in its submissions the Respondent highlighted what constitutes a Preliminary Objection as enunciated in of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (Supra). It was highlighted that the basis of the Petition rested on the singular issue that the Petitioner was unlawfully and unfairly retired by the Respondent on 4 th August 2023. It was contended that the only recourse sought by the Petitioner is a declaration that the retirement was unfair, order for reinstatement and general damages for unfair labour practices. 5 | Page

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9. It was noted that the Petitioner was employed as a County Government public servant by the Respondent, thus, the Petition contravened Article 234 (2) (i) of the Constitution. It was submitted that the Petitioner ought to have filed an appeal against the retirement with the Public Service Commission. Reference was made to Sections 77(1) and (2) of the County Governments Act, and Section 87(2) of the Public Service Commission Act, 2017; to argue that the provision was couched on a mandatory term. It was submitted that the import of the provision was that if a person opted to proceed to court before appealing with the Public Service Commission, the jurisdiction of the court will be ousted. Reliance was also placed on the Supreme Court decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR which held that jurisdiction flows from either the Constitution or legislation or both. Further support was gathered from the decision in Fred Marmalei Loronyokwe v County Government of Samburu & Another. 10. It was further submitted that the Preliminary Objection be allowed and the suit be struck out albeit with no order as to costs. Counsel urged that the Petition was premature, and contravened the provisions of the Constitution, the County Governments Act and the Public Service Commission Act. It was submitted that the Public Service Commission, on 8th October 2025 dismissed the Petitioner’s application for leave to appeal out of time, which decision has never been challenged through review as required. 11. The Petition was further termed as being contrary to Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules as it sought for the order of certiorari to quash a decision 6 | Page

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made on 4th August 2023, thirty-one (31) months later. It was submitted that the court lacked the discretion to extend the time within which to file for an order of certiorari. Reliance was placed on the decision in Republic v Kadhi Court at Wajir & another Exparte Abdi Koriyoy Gabow [2019] KEHC 2447 (KLR). It was urged that the Preliminary Objection was merited and should be allowed as prayed with costs being awarded to the Respondent. 12. The singular issue for determination is whether the Respondent’s Preliminary Objection is merited. 13. The nucleus of the Preliminary Objection is that the Petition is barred by the doctrine of exhaustion. This contention is objected to by the Petitioner on account that the Preliminary Objection offended the principles established in the Mukhisa Biscuit case and that he had exhausted all internal mechanisms. 14. In Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) the Supreme Court stated the principle in the Mukhisa Biscuit case as follows: 14.The nature and scope of a “preliminary issue” is cogently defined in the statement of Law, JA, in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 at 700: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by 7 | Page

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the contract giving rise to the suit or to refer the dispute to litigation.” Emphasis supplied. 15. Other than the doctrine of exhaustion and jurisdiction, the Preliminary Objection is largely wordy and pleaded as opposed to law. 16. The main issue of contestation is arguably the Court’s jurisdiction to hear and determine the Petition. It is trite law the jurisdiction is everything and primordial as captured in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) as follows: “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 17. The issues raised by the Petition touch on alleged violation of his rights, which and they fall within the jurisdiction of this Court and outside the PSC’s jurisdiction. In Suleiman v County Government of Isiolo & another [2015] eKLR the court upheld its jurisdiction in a similar case as follows: “That this court enjoys the jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights (and enforcement of constitutional and statutory provisions) ancillary and incidental to those matters was upheld in the ruling delivered by this court on 30.04.2014 in Geoffrey Makana Asanyo –Versus- Nakuru Water and Sanitation Services Company and 6 Others [2014] eKLR. The 8 | Page

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Court of Appeal held as much in Judicial Service Commission – Versus- Gladys Boss Shollei & Another [2014] eKLR. … As stated by the court earlier in this judgment, the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions in disputes between employers and employees rests with this court as vested with the appropriate jurisdiction under Articles 159(1), 162 (2) (a) as read with Article 165(5) and (6) of the Constitution; Articles 22(1) and 258(1) of the Constitution, and the provisions of the Employment and Labour Relations Act, 2011. The court holds that the jurisdiction spreads to all issues in the employment relationship and related matters including the enforcement of the fundamental rights and freedoms under Article 22 of the Constitution and enforcement of the Constitution under Article 258 as far as the issues in dispute are, evolve, revolve or relate to employment and labour relations. The court holds that the compass or golden test for the court’s jurisdiction is the subject matter in the dispute namely disputes relating to employment and labour relations as provided for Article 162 (a) of the Constitution and as amplified in the Employment and Labour Relations Act, 2011 and not the remedies sought or the procedure of moving the court or the situ of the applicable law or any other extraneous considerations as may be advanced by or for a litigant.” 18. While it is true that the Petitioner did not invoke the internal dispute resolution mechanism under the provisions of the Public Service Commission Act and the County Government Act, it is equally true that when he sought for extension of 9 | Page

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time to lodge the appeal on 9th September 2025, the Public Service common declined the Petitioner’s application vide its ruling delivered on 8th October 2025. The import of the commission’s decision is that the Petitioners belated attempt to invoke the internal dispute resolution mechanism had met its waterloo and the only available option was to invoke the court’s jurisdiction. Flowing from the foregoing it is discernible that the Respondent’s Notice of Preliminary Objection dated 22nd May 2026 lacks merit and it is accordingly dismissed. Costs shall abide the outcome of the Petition. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of 10 | P a g e

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access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE 11 | P a g e

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