Makanda v CEO Teachers Service Commission

5. When the matter came up for directions on 27th January 2026, the court directed that the application be canvassed by way of written submissions. Mr. Jumba for the applicant led written submissions dated 25th February 2026 and the Supplementary submissions dated 14th May 2026. Mr. Edwiq Musundi, for the Respondent led written submissions dated 27th April 2026. II. Evidence 6. The Applicant’s case is that he was employed by the Respondent as a teacher from 1st November 2004. He was subjected to disciplinary proceedings following allegations of delement and was subsequently dismissed from employment and removed from the Register of Teachers via a decision communicated to him on 31st January 2024. He thereafter sought a review of the decision but the Review Panel, in its determination communicated on 3rd December 2024, upheld both his dismissal and removal from the Register of Teachers. 7. The Applicant contended that the disciplinary process was procedurally unfair and was conducted in bad faith. In particular, he alleged that the disciplinary panels failed to consider material evidence presented in his defence, including the victim’s statement, medical evidence, and statements from his witnesses. He further stated that during the criminal proceedings arising from the allegations, the victim admitted that she had lied. He also relied on a report from Alupe Sub-County Hospital which, according to him, indicated that there was no evidence of vaginal penetration. 8. The Applicant stated that he instructed his advocates to institute judicial review proceedings challenging the Respondent’s decision. He contended that leave to commence the proceedings was granted but, the substantive motion was inadvertently led in the High Court instead of the Employment and Labour Relations Court (ELRC). Upon being advised that the ELRC was the court with jurisdiction, he instructed his advocates to withdraw the proceedings led in the High Court and the same were withdrawn. 9. The Applicant is now seeking an extension of time to enable him obtain leave and institute proceedings for orders of certiorari and mandamus in this court. He attributed the delay to the ling and subsequent withdrawal of the proceedings in the High Court and contended that the delay was neither deliberate nor occasioned by indolence on his part. He maintained that he has a meritorious claim arising from the alleged procedural irregularities, failure to consider relevant evidence, and alleged violation of his constitutional rights. 10. The Applicant urged the Court to exercise its discretion in his favour and extend the time within which he may commence the intended judicial review proceedings. 11. In the grounds of opposition, the Respondent contended that the Court lacks jurisdiction to extend the statutory six-month period for commencing judicial review proceedings under Section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. It is contended that the application was led after an inordinate delay and therefore amounted to abuse of the court process. 12. The Respondent further argued that the Applicant’s grievance arose from a private contract of employment and ought to have been pursued through an ordinary claim rather than judicial review. It was submitted that the dispute concerned private contractual rights and did not fall within the purview of judicial review. 13. The Respondent further contended that the Applicant had failed to exhaust the available alternative dispute-resolution mechanisms under the employment and labour relations framework, contrary to Section 9(2) of the Fair Administrative Action Act. It was asserted that the Court lacks jurisdiction to entertain the application and that granting the orders sought would be a nullity. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2567/eng@2026-09-24 2

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III. Submissions 14. Counsel for the Applicant submitted globally in support of the application, urging the Court to exercise its discretion to extend time, and further asserting that the delay was neither inordinate nor unexplained. Counsel attributed the delay to an inadvertent error by the Applicant’s former counsel, who had led the earlier judicial review proceedings in the wrong court. It was submitted that upon discovery of the error, the proceedings were withdrawn and the present application led within a short period. Counsel further submitted that the Respondent had not demonstrated any prejudice that would result from the extension of time. 15. Counsel cited the decision in Republic v Speaker of Nairobi City County Assembly & another; Kidero (Ex parte Applicant) [2017] KEHC 6101 (KLR), on the distinction between extension of time under the Civil Procedure Rules and statutory limitation and further cited the decision in Ivita v Kyumba [1984] KLR 441 for the principles applicable in case of delay. 16. Counsel further cited the decisions in Belinda Murai & Others v Amos Wainaina [1978] KECA 23 (KLR) and Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) in support of the proposition that a party should not be denied an opportunity to have his dispute determined on merit, merely because of a mistake or blunder by counsel. 17. In the supplementary submissions, Counsel submitted that extension of time is a matter of judicial discretion and cited the decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR on the principles governing extension of time, including the requirement for a reasonable explanation for the delay, absence of undue delay, the extent of prejudice to the opposing party, based on the circumstances of each case. Counsel maintained that the Applicant had satised the applicable principles for the court to allow the application. 18. Counsel further distinguished the authorities cited by counsel for the Respondent, submitting that they were either dierent on respective facts or had been overtaken by subsequent decisions. Counsel therefore urged the Court to exercise its discretion in favour of the applicant and allow the application for extension of time. 19. On the other hand, Counsel for the Respondent submitted on two issues – Whether the Honourable Court has jurisdiction to extend time to le a Judicial Review outside the stipulated 6 months; and Whether the relationship between the Respondent and the Ex Parte Applicant is predicated upon a contract of employment within the purview of employment law and not judicial review. 20. On the rst issue, Counsel relied on the provisions of Section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, that prescribe a six-month period for seeking leave to commence proceedings for Certiorari. It was submitted that the impugned decision was the Applicant’s dismissal vide a letter dated 31st January 2024 and that the application was therefore led outside the prescribed period. Counsel cited a plethora of decisions – Republic v Council of Legal Education & Another, ex parte Sabiha Kassamia & Another [2018] eKLR, Wilson Osolo v John Ojiambo Ochola & Another [1995] eKLR, and Republic v Director of Land Adjudication and Settlement & 2 Others [2017] eKLR, in advancing the argument that the six-month statutory period was mandatory and that the Court lacked jurisdiction to extend the same. 21. On the second issue, Counsel submitted that the Applicant was a former employee of the Respondent having served as a teacher and that the dispute arose from his contract of employment. Counsel argued that although the application was framed as a judicial review matter, its substance concerned the legality of the Applicant’s dismissal and enforcement of contractual rights. Counsel therefore contended https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2567/eng@2026-09-24 3

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that the dispute ought to have been instituted by way of an ordinary employment claim under the applicable employment law rather than through judicial review. 22. Counsel further cited the decision in Maurice Adongo Anyango v Kenyatta International Convention Centre [2018] eKLR, wherein the Court of Appeal emphasized the need to follow the prescribed procedure for redress in employment disputes. Counsel also cited the decisions in Erick Samuel Bwibo v Teachers Service Commission & 2 Others [2021] eKLR and Peter Ndegwa Nderitu v Teachers Service Commission [2019] eKLR in support of the proposition that an employment dispute should not be clothed as judicial review to circumvent the applicable statutory requirements and limitation periods. 23. It was further submitted that mandamus was unavailable to the Applicant who is seeking to enforce a private contractual right as opposed to compelling performance of a public or statutory duty. Counsel argued that reinstatement involved consideration of the circumstances of termination and the remedies available under Section 49 of the Employment Act and those are matters which were more appropriately adjudicated upon in an ordinary claim or cause. 24. The Respondent consequently urged the Court to nd that the application was time-barred, to the court lacked jurisdiction to extend the statutory period and, that the dispute was founded on an employment contract and ought to have been pursued by way of a claim. IV. Analysis & Determination 25. Upon due consideration of the application, the adavit in support thereof, the grounds in opposition, the annexures to the supporting adavit, and the written submissions by Counsel for both parties, the following issues commend themselves for determination – a. Whether the court has jurisdiction to extend time and grant leave to the Applicant to seek for orders of judicial review of certiorari and mandamus. b. Costs. V. Certiorari 26. Rule 6 of the Fair Administrative Actions Rules, 2024 (Legal Notice No. 165 of 2024) (FAA Rules) provides that an application to quash an administrative action should be commenced within six weeks of the administrative action. The rule further provides that the court may extend that period on written application where the Applicant proves that, because of fraud or misrepresentation, they were prevented from knowing of the administrative action or that despite exercising due diligence they could not have known of the action. A court may consider the length and reason for the delay and prejudice to the Respondent in making the appropriate orders. 27. Rule 10(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024 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. 28. Under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, an application for leave to apply for an order of certiorari must ordinarily be made within six months of the judgment, order, decree, conviction or proceeding sought to be quashed. Order 53 Rule 2 of the Civil Procedure Rules expressly states that leave shall not be granted after that period. 29. It follows thus that a prayer for leave to extend time to le for certiorari cannot be entertained by court beyond the statutory timeline. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2567/eng@2026-09-24 4

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V. Mandamus 30. On the other hand, while there is no statutory limitation for seeking an order of mandamus, an order of mandamus is ordinarily issued to compel performance of a specic statutory or public duty which a public body or public ocer has failed or refused to perform. It is not an order of specic performance of a contract or an order to enforce a breach of a private obligation. The fact that an employer is a public institution does not automatically convert the employment contract into a public-law relationship. The intended legal action by the Applicant relates to what he terms as procedural impropriety by the Respondent for failing to accord him a right to be heard before he was dismissed from employment vide a letter dated 31st January 2024. 31. In Akolo v Board of Directors, Amatsi Water Services Company Limited & 2 others [2025] KEELRC 356 (KLR), the court expressed that – 32. “ 50. There is also absolutely no reason oered as to why the applicant opted to le judicial review proceedings in a matter of a private employment dispute. The nature of the claim is an employment relationship dispute that is squarely in the realm of private law for remedies in personam as opposed to public law for remedies in rem. 51. Judicial review proceedings are in their very nature intended to check excesses, abuses, and violations by public ocers and public institutions in performance of their public duties and authority as opposed to private ocers or private institutions in execution of private duties and contracts. 52. Rule 10(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024 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. 53. Order 53 of the Civil Procedure Rules provides for the procedural manner and style of ling and presenting judicial review proceedings. Sections 7 & 8 of the Law Reform Act is the substantive law on the prerogative writs of mandamus, certiorari, and prohibition. 54. It is evidently clear from the foregoing that the judicial review application and the proceedings herein are improperly before this court on at least three fronts. Firstly, there is a fatal misjoinder as the Board of Directors, Amatsi Water Services Company Limited, is neither a legal entity capable of being sued, and nor is it capable of being sued for and on behalf of the company, a legal entity with capacity to sue and be sued. Secondly, there is no cause of action disclosed against the other named respondents and the interested part. Thirdly, the subject matter of the dispute between the applicant and the company is in the nature of a private employment relationship dispute that has nothing to do with a public duty and or execution of such duty’. This Court arms the above position in nding that the leave sought for ling judicial review proceedings for an order of mandamus by the Applicant, arising from a private employment relationship, cannot issue as it does not relate to a public duty but rather to a private employment relationship and hence the leave sought to extend time to le for the said orders would be futile even if granted. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2567/eng@2026-09-24 5

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33. It follows, therefore, that the application dated 11th November 2025 has no merits and the Court hereby orders the dismissal of the same. 34. This ruling shall apply mutatis mutandis to Bungoma ELRC Judicial Review No. E001 of 2025 Moses Bob Mumbo v CEO Teachers Service Commission. VI. Orders 35. The court orders – a. That the application dated on 11th November 2025 is hereby dismissed for lack of merits. b. No order as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. …………………… DAVID NDERITU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2567/eng@2026-09-24 6

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