Ngei v Chief Officer, Public Service Management & Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2023] KEELRC 2447 (KLR)
The bottom line
#The High Court in Kisumu ruled that constitutional violations can be taken straight to court without first exhausting Public Service Commission appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has the jurisdiction to hear and determine the Ex parte Applicant's Judicial Review Motion
- 2.Whether Article 234(2)(i) as read with Section 77 of the County Government Act and Section 87(2) of the Public Service Commission Act, 2017 oust this Court's jurisdiction to entertain the motion
Key legal issues
#Whether the statutory appellate mechanism before the PSC ousted the High Court's jurisdiction over the judicial review motion
The PSC appeal mechanism did not apply because the matters raised were allegations of constitutional violations and prayers for judicial review orders which the PSC cannot grant; the court retained jurisdiction.
The court accepted that Section 77 of the County Government Act and Section 87(2) of the PSC Act require exhaustion of PSC appeals in employment matters. However, the motion was anchored on alleged violations of Articles 27, 29, 36, 38, 47 and 50(1) and sought judicial review orders. Such matters fall outside the appealable matters in Article 234(2)(i) and Sections 85, 86 and 87 of the PSC Act, so no adequate alternative forum existed.
Whether the fact that the Applicant did not personally apply for any county position excluded him from the PSC appellate jurisdiction
Any person affected by a decision of the County Public Service Board may appeal to the PSC; non-application for a position did not exclude the Applicant from the PSC's appellate mandate, but this did not decide the matter as the claims were constitutional in nature.
Reading Section 77(1), the court observed that anyone affected by a County Public Service Board decision or purported disciplinary control may appeal to the PSC. The Applicant's argument that he never applied for a position therefore did not, by itself, remove him from the exhaustion regime. The objection nonetheless failed because the substance of the claims was constitutional violation, not employment grievance.
Legal principles established
#- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before invoking the court process (exhaustion doctrine).
- The exhaustion requirement under the County Government Act and the PSC Act does not oust the High Court's jurisdiction over matters alleging constitutional violations that the PSC has no power to determine.
- Jurisdiction is foundational; a court without jurisdiction must halt proceedings immediately.
Court orders
#- 1.The Preliminary Objection is found to lack merit and is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- High Court's supervisory and judicial review jurisdiction under Order 53 of the Civil Procedure Rules; court sitting as a judicial review court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find the Preliminary Objection lacking in merit and is hereby dismissed with costs.
the issues raised under the motion cannot be remedied elsewhere other than before court.
Jurisdiction is everything. Without it, a court has no power to make one more step.
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
Issues in the judgment
#The judgment does not state the names of the Ex Parte Applicant or the Respondent, or the case/petition number, making full party identification impossible from the text alone.
The judgment refers to Section 87(2) of the Public Service Commission Act as the 'Public Service Commission Act, 2017' while elsewhere citing it without a year; the PSC Act is enacted under the 2012 statute year, suggesting a possible typographical inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngei v Chief Officer, Public Service Management & Devolution; Migori County Public Service Board (Interested Party) (Judicial Review E024 of 2023) [2023] KEELRC 2447 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2447/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.